United States v. Richard Brown, Jr.

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-2343

___________________________

United States of America

Plaintiff - Appellee

v.

Richard Ladavid Brown, Jr., also known as Richard Lee David Brown, also known

as Junior Brown

Defendant - Appellant

____________

Appeal from United States District Court

for the Southern District of Iowa - Central

____________

Submitted: June 16, 2023

Filed: December 13, 2023

____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

____________

KELLY, Circuit Judge.

A jury found Richard Lee David Brown guilty of possession with intent to

distribute a controlled substance. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851.

Brown appeals his conviction, alleging multiple pre-trial and trial-related errors. We

affirm.

I.

At about 5:00 a.m. on November 18, 2020, law enforcement executed a search

warrant at an apartment on Clark Street, in Des Moines, Iowa.1 Brown, Kenny Smart,

and Smart’s girlfriend, Dionne Dibble, were present when officers arrived. Lisa

Harper, the tenant of the apartment, was not.

When officers first entered the apartment, they saw a man—Brown—running

towards the kitchen. They secured Brown, and then searched the three-bedroom

apartment.

In the first bedroom, officers found Smart, his tablet, a firearm and

ammunition, over a thousand dollars of cash belonging to Smart, and Dibble’s cell

phone. In the third bedroom, law enforcement found drugs—much of which was

later determined to be cocaine base—and drug paraphernalia. On the bed were drugs

in plastic bags, along with a hat, a jacket, and a cell phone with a blue case. No

fingerprints were found on this evidence, although law enforcement later testified

that finding identifiable prints on drug packaging is “[v]ery, very rare.” In a still shot

from a surveillance video taken of the apartment building the day before, Brown was

seen wearing a hat and jacket that looked like those found on the bed.

Later that day, Special Agent Brandon West interviewed Brown. Brown told

Agent West that he had stayed in the third bedroom the previous night. Brown also

described his cell phone and told Agent West his cell phone number, both of which

matched the phone found on the bed in the third bedroom. In Brown’s pocket, law

enforcement found $590 in cash, which they photographed.

Brown was indicted on one count of possession with intent to distribute

cocaine base. His first attorney was appointed in late November 2020, and Brown

requested—and received—his first continuance soon after his arraignment. Brown’s

1

The facts in this section are drawn from the record before us on appeal.

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first attorney was permitted to withdraw on February 18, 2021, and his second

attorney was appointed that same day. In October 2021, Brown’s second attorney

twice requested that trial be continued, but the district court2 denied these requests.

Brown’s second attorney was allowed to withdraw the following month, and the

court granted Brown a continuance “to provide the reasonable time necessary for

effective preparation.”

On December 1, 2021, Brown’s third attorney—who was ultimately Brown’s

trial counsel—was appointed. He initially represented to the court that he would be

ready for trial on January 31, 2022. But on January 3, 2022, he filed a motion to

continue trial, explaining that he had not appreciated the amount of discovery or the

extent of his client’s requests for additional investigation and in-person meetings.

The court denied the motion.3

Brown’s trial began on January 31, 2022. The government called Lometa

Welch as one of its witnesses. She testified that she went to the Clark Street

apartment on the morning that the search warrant was executed, “not long before”

the police arrived, to buy crack cocaine. She said she waited by the front door while

Lisa Harper got the crack from Brown. Welch claimed that she knew the crack came

from Brown because she heard Harper say his name when Harper went into the

bedroom, and Welch recognized Brown’s voice in response. The government also

introduced evidence of Brown’s two previous controlled substance related

convictions, as well as evidence related to Smart. The jury heard that Smart was

arrested on the day the Clark Street apartment was searched, and that he was charged,

tried, and found guilty of possession of a firearm as a felon and use of a firearm in

furtherance of a drug crime. The jury also heard that Smart not only sold drugs, but

2

The Honorable Rebecca Goodgame Ebinger, United States District Judge for

the Southern District of Iowa.

3

Brown’s third attorney thereafter sought to withdraw, citing a breakdown in

the attorney client relationship, and Brown filed a pro se motion requesting the same.

After a hearing, the defense withdrew its request.

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that he did so out of the Clark Street apartment, where he also cooked cocaine

powder into cocaine base (or crack). As relevant on appeal, the government also

introduced into evidence the photograph of Brown’s cash and the still shot from the

surveillance video taken of the apartment building the day before the search that

captured Brown wearing the hat and jacket that looked like those found in the third

bedroom.

At the conclusion of the government’s case, Brown moved for judgment of

acquittal, which the court denied. He then asked that a “mere presence” instruction

be given to the jury, but the court denied the request. The jury returned a guilty

verdict. The district court denied Brown’s motion for a new trial, and sentenced him

to a 264-month term of imprisonment and 6 years of supervised release. He timely

appeals and raises multiple issues.

II.

As an initial matter, Brown moves to expand the record on appeal and asks us

to consider evidence not presented to the district court. But “[a]n appellate court can

properly consider only the record and facts before the district court and thus only

those papers and exhibits filed in the district court can constitute the record on

appeal.” United States v. Brewer, 588 F.3d 1165, 1171 n.4 (8th Cir. 2009) (quoting

Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 559–60 (8th Cir.

2008)); see Faidley v. United Parcel Serv. of Am., Inc., 889 F.3d 933, 942 n.7 (8th

Cir. 2018) (en banc); see also Fed. R. App. P. 10(a) (defining record on appeal).

Because the documents that Brown wants us to consider “were presented for

the first time on appeal, ‘they are not part of the record for our review,’ and we

cannot consider them.” C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591

F.3d 624, 629 n.4 (8th Cir. 2010) (quoting Bath Junkie, 528 F.3d at 560); see

Midwest Fence Corp. v. U.S. Dep’t of Transp., 840 F.3d 932, 946 (7th Cir. 2016)

(“As a general rule, we will not consider evidence on appeal that was not before the

district court when it rendered its decision. Adding new evidence would essentially

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convert an appeal into a collateral attack on the district court’s decision.” (citations

omitted)); cf. Fed. R. App. P. 10(e)(2) (allowing errors in, and omissions from, the

record to be remedied in limited circumstances not present here). Consequently, we

deny Brown’s Amended Motion to Expand the Record on Appeal and we examine

his arguments based on the record that was before the district court.

III.

Brown argues that the government improperly introduced statements in which

he described his cell phone and provided his cell phone number to Agent West. He

asserts that their introduction was improper because he made these statements during

a custodial interrogation before he received any Miranda warning.

“[A] motion to suppress evidence [must] ‘be raised by pretrial motion if the

basis [for] the motion is then reasonably available and the motion can be determined

without a trial on the merits.’” United States v. Pickens, 58 F.4th 983, 987 (8th Cir.

2023) (quoting Fed. R. Crim. P. 12(b)(3)(C)) (considering issue in Fourth

Amendment context). When a party fails to show good cause for not raising

suppression in a pretrial motion, “[w]hether this issue is waived, or whether plain-

error review is available, is an unsettled question in our circuit.” Id. at 988

(expressing the view that waiver is “the proper answer,” but nonetheless reviewing

suppression argument not raised to district court for plain error); see United States

v. Thornton, No. 22-2790, 2023 WL 4994508, at *2 (8th Cir. Aug. 4, 2023) (per

curiam) (unpublished) (reviewing defendant’s argument to suppress evidence

“under a plain-error standard,” when the argument was neither “raised by pretrial

motion, nor raised at all to the district court”).

Brown’s argument that his pre-Miranda statements should be suppressed was

not raised to the district court, and he has not offered good cause for his failure to do

so. Assuming without deciding that plain error review is available to Brown, we

review for plain error. See Pickens, 58 F.4th at 988 (first citing United States v. Hill,

8 F.4th 757, 760 (8th Cir. 2021) (per curiam); and then citing United States v.

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Bernhardt, 903 F.3d 818, 824 (8th Cir. 2018)). “To obtain relief . . . [Brown] must

show an obvious error that affected his substantial rights and seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Bernhardt, 903 F.3d

at 824–25 (citing United States v. Olano, 507 U.S. 725, 732 (1993)).

Our review of this issue is confined to the record before us on appeal, and

Brown’s argument relies on information outside that record. The evidence at trial—

and before us now—included testimony that soon after the officers entered the Clark

Street apartment, Brown was handcuffed. The record does not indicate when Brown

was given a Miranda warning or whether the Miranda warning was given before or

after the now-challenged statements were made. Because we can “properly consider

only the record and facts before the district court,” Brewer, 588 F.3d at 1171 n.4

(citation omitted), we cannot conclude the district court plainly erred in allowing the

statements into evidence.

IV.

Brown argues that, at trial, the government offered and relied on Lometa

Welch’s uncorrected false testimony, in violation of his Due Process rights. Because

he did not raise this issue at trial, we review for plain error. See United States v. Hill,

31 F.4th 1076, 1082–84 (8th Cir. 2022), cert. denied, 143 S. Ct. 1036 (2023).

Welch testified that she interacted with Lisa Harper at the Clark Street

apartment on the morning it was searched. Brown contends that this testimony is

false because, he claims, “Harper was not present at the residence that morning.”

The evidence supports the assertion that Harper was not at the apartment when the

officers executed the search warrant. But no evidence in the record supports the

assertion that Harper was not present at the apartment earlier that morning—before

the search warrant was executed. On this record, Brown has failed to show any error

that was plain.

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V.

Next, Brown challenges four of the district court’s evidentiary rulings. First,

its admission of two of Brown’s prior state convictions under Federal Rule of

Evidence 404(b): a 2014 conviction for possession of a controlled substance

(cocaine base) with intent to deliver, and a 2019 conviction for possession of

cocaine. Second, its exclusion of “reverse” 404(b) evidence about Smart. Third, its

admission of an exhibit showing money that had been returned to Brown before trial.

And fourth, its admission of Agent West’s testimony about the lack of fingerprints

found on contraband seized from the apartment.

A.

For evidence to be admissible under Rule 404(b) it must:

be (1) relevant to a material issue raised at trial, (2) similar in kind and

close in time to the crime charged, (3) supported by sufficient evidence

to support a jury finding the defendant committed the other act, and (4)

of probative value not substantially outweighed by its prejudicial effect.

United States v. LeBeau, 867 F.3d 960, 978–79 (8th Cir. 2017) (quoting United

States v. Halk, 634 F.3d 482, 486–87 (8th Cir. 2011)). “We review the admission of

evidence under Rule 404(b) for abuse of discretion.” United States v. Jones, 74 F.4th

941, 949 (8th Cir. 2023) (quoting United States v. Riepe, 858 F.3d 552, 559 (8th Cir.

2017)). We “revers[e] only when the evidence clearly had no bearing on the case

and was introduced solely to prove the defendant’s propensity to commit criminal

acts.” United States v. Abarca, 61 F.4th 578, 581 (8th Cir. 2023) (quoting United

States v. DNRB, Inc., 895 F.3d 1063, 1068 (8th Cir. 2018)).

Here, the government’s proposed uses of Brown’s prior convictions to prove

knowledge, motive, and intent “were not well-explained, and might prudently have

been omitted.” United States v. Monds, 945 F.3d 1049, 1052 (8th Cir. 2019). But

they were relevant to his “state of mind,” and to the elements of the charge brought

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against him. Jones, 74 F.4th at 950 (quoting United States v. Davis, 867 F.3d 1021,

1029 (8th Cir. 2017)). The convictions “thus had some ‘bearing on the case,’ and

w[ere] not used ‘solely to prove’ his ‘propensity to commit criminal acts.’” Abarca,

61 F.4th at 581 (quoting DNRB, 895 F.3d at 1068). Moreover, the district court’s

decision to provide a cautionary instruction before the 404(b) evidence was

introduced, as well as a final instruction to the same effect, lessened any unduly

prejudicial effect of the convictions. Cf. Monds, 945 F.3d at 1053 (discussing

cautionary instruction). The district court did not abuse its discretion.

B.

The “reverse” 404(b) evidence relates to Kenny Smart, who was present at the

Clark Street apartment on the morning of the search. “[R]everse” 404(b) evidence

“refer[s] to evidence of prior bad acts by a third party, introduced by the defendant

and offered to implicate the third party in the charged crime.” United States v. Battle,

774 F.3d 504, 512 & n.2 (8th Cir. 2014) (citing cases from the Fourth, Tenth,

Seventh, Sixth, Fifth, Ninth, and Third Circuits). Before trial, the district court ruled

that evidence pertaining to Smart that was related to the search at Clark Street was

admissible, but that it would exclude evidence of Smart’s prior convictions. Because

Brown objected to the exclusion of the “reverse” 404(b) evidence, we review the

district court’s decision for abuse of discretion. See Jones, 74 F.4th at 949. We “will

‘revers[e] only when an improper evidentiary ruling affected the defendant’s

substantial rights or had more than a slight influence on the verdict.’” United States

v. Vaca, 38 F.4th 718, 720 (8th Cir. 2022) (quoting United States v. Anderson, 783

F.3d 727, 745 (8th Cir. 2015)).

Here, we need not decide the propriety of the evidentiary ruling because there

is no indication that the exclusion of the “reverse” 404(b) evidence had more than a

slight influence on the verdict. Brown asserts that this exclusion prevented him from

raising questions about who in fact possessed the drugs found on the bed during the

search. As a result, he argues, he could not “sow doubt into the case against [him].”

But the record says otherwise. Smart did not testify at trial, but Brown was able to

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offer ample details about Smart and use that information to “sow doubt” as to who

possessed the drugs. Given the information about Smart that Brown put before the

jury, the exclusion of the “reverse” 404(b) evidence could have had no more than “a

slight influence on the verdict.”

C.

Next, Brown argues that a photograph of $590 in cash that was found in

Brown’s front pocket on the day of the search was improperly admitted. Because

Brown raises this issue for the first time on appeal, we review for plain error. United

States v. Torrez, 925 F.3d 391, 395 (8th Cir. 2019) (citing United States v. Lee, 374

F.3d 637, 649 (8th Cir. 2004)). Brown asserts that because this money was returned

to him before trial, the introduction of a photo of the cash at trial was unfairly

prejudicial. But Brown points to nothing in the record to support the assertion that

this cash was, in fact, returned to him. Even assuming it was, he does not explain

why the photo of the cash should be considered “impermissible . . . 404(b) evidence,”

as he asserts it to be. This rule of evidence limits the use of any “other crime, wrong,

or act.” Fed. R. Evid. 404(b)(1) (emphasis added). Yet the drugs found in the third

bedroom and the money found in Brown’s pocket were both seized on the day the

Clark Street apartment was searched. Brown has not explained how the challenged

evidence is evidence of any “crime, wrong, or act” that is separate from the acts

forming the basis for the charge against him. The district court did not plainly err in

admitting the exhibit.

D.

Brown argues that Agent West should not have been permitted to testify that

it was “[v]ery, very rare” to find identifiable prints on drug packaging. This

evidence, Brown argues, “goes into the territory of expert witness.” Because Brown

did not object to this testimony, we review for plain error. See United States v.

Yarrington, 634 F.3d 440, 447 (8th Cir. 2011) (“To preserve an argument that

evidence was improperly admitted, the party must have made specific objections

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before the district court.” (first citing United States v. Johnson, 450 F.3d 366, 371

n.2 (8th Cir. 2006); and then citing Fed. R. Evid. 103(a)(1))); United States v. Martin,

869 F.2d 1118, 1121–22 (8th Cir. 1989) (applying same standard in context of expert

testimony).

Even if the contested statement qualified as expert testimony, see Daubert v.

Merrell Dow. Pharms., Inc., 509 U.S. 579, 592–95 (1993); Fed. R. Evid. 702, any

error in its admission did not affect Brown’s substantial rights. Contrary to Brown’s

conclusory argument that Agent West’s statement “prevent[ed] the jury from a full

opportunity to fairly assess the actual evidence against [him],” the jury had ample

opportunity to assess the evidence presented at trial, including the fact that the

forensics lab was unable to locate or develop any identifiable fingerprints on this

evidence. There was no plain error.

VI.

Brown asserts the district court erred in denying his request for a “mere-

presence” instruction. We review for abuse of discretion. United States v. Franklin,

960 F.3d 1070, 1072 (8th Cir. 2020) (citing United States v. Solis, 915 F.3d 1172,

1178 (8th Cir. 2019) (per curiam)). “When reviewing jury instructions, we ensure

that the instructions, taken as a whole, fairly and adequately submitted the issues to

the jury.” United States v. Glinn, 863 F.3d 985, 988 (8th Cir. 2017) (citing United

States v. Merrell, 842 F.3d 577, 583 (8th Cir. 2016)). “A defendant is not entitled to

a particularly worded instruction on his theory of defense, but he should be given an

avenue to present his contention.” United States v. Drew, 9 F.4th 718, 725 (8th Cir.

2021) (quoting Franklin, 960 F.3d at 1072).

As the district court noted, the instructions, when taken together, allowed

Brown “the opportunity to argue [] what he [wa]s requesting to argue”: that he did

not knowingly possess the drugs and his mere presence was insufficient to support

conviction. “[T]he ‘unmistakable implication’” of Instruction 13, which addressed

constructive possession, was “that something more than mere presence was required

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in order to convict.” Franklin, 960 F.3d at 1072 (quoting United States v. Vore, 743

F.3d 1175, 1182 (8th Cir. 2014)); Drew, 9 F.4th at 725 (noting proposed mere-

presence instruction would have been duplicative of interlocking constructive- and

joint-possession definitions). And Final Instruction No. 10 required the government

to prove that Brown knowingly possessed a controlled substance and intended to

distribute some or all of it. Taken as a whole, the final instructions adequately

conveyed that more than mere presence was required to convict Brown. See Drew,

9 F.4th at 725; Franklin, 960 F.3d at 1072; United States v. Claxton, 276 F.3d 420,

424 (8th Cir. 2002) (noting “the district court might well have given the mere-

presence portion of the requested instruction,” but based on the circumstances of that

case, did not abuse its discretion in declining to do so).

VII.

Brown argues that he was denied a fair trial when the district court denied his

January 3, 2022, motion to continue the trial. “We review the denial of the motion

for a continuance for a prejudicial abuse of [the district court’s broad] discretion.”

United States v. Woods, 978 F.3d 554, 567 (8th Cir. 2020) (citation omitted); United

States v. Chahia, 544 F.3d 890, 896 (8th Cir. 2008) (recognizing “a ‘district court’s

discretion is at its zenith when the issue [of a continuance] is raised close to the trial

date’” (quoting United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007))).

But we will only reverse if an abuse of discretion occurred “and the moving party

was prejudiced as a result.” See Chahia, 544 F.3d at 896 (quoting United States v.

Wilcox, 487 F.3d 1163, 1172 (8th Cir. 2007)).

Brown’s argument in support of prejudice is twofold. First, he asserts that

“multiple theories of defenses were not explored (including securing the testimony

of Ms. Dionne Dibble).” But in the motion to continue, Brown did not mention

Dibble or any other witnesses or theories that the defense needed time to pursue.

Thus, any speculation now as to what Dibble’s testimony would have added to

Brown’s defense is “insufficient to demonstrate prejudice.” Chahia, 544 F.3d at 897

(citations omitted); see United States v. Howard, 540 F.3d 905, 906–07 (8th Cir.

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2008) (determining district court did not err in denying defendant’s motion for

continuance because “[s]peculation is inadequate to establish prejudice”). Moreover,

Brown has failed to explain these unexplored defense theories or how a continuance

would have allowed him to develop them.

Second, Brown argues that prejudice is “illustrate[d]” by “any issues” that this

court finds were unpreserved. This argument is wholly conclusory, failing to

“meaningfully argue” how a continuance would have allowed him to preserve any

of these issues. See United States v. Williams, 39 F.4th 1034, 1045 n.3 (8th Cir.

2022) (citing Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007) (“[P]oints

not meaningfully argued in an opening brief are waived.”)).

Without more, Brown has failed to show that the denial of his motion to

continue resulted in prejudice. See Woods, 978 F.3d at 568.

VIII.

Brown appeals the denial of his motion for judgment of acquittal, which we

review de novo. United States v. Broeker, 27 F.4th 1331, 1335 (8th Cir. 2022). “[W]e

‘view[] the entire record in the light most favorable to the government, resolv[ing]

all evidentiary conflicts accordingly, and accept[ing] all reasonable inferences

supporting the jury’s verdict.’” Id. (quoting United States v. Aungie, 4 F.4th 638,

643 (8th Cir. 2021)). “We will reverse a district court’s denial of a motion for

acquittal only if there is no interpretation of the evidence that would allow a

reasonable jury to find the defendant guilty beyond a reasonable doubt.” Id. (cleaned

up).

“To convict a defendant of possession with intent to distribute a controlled

substance, the government must prove beyond a reasonable doubt that the defendant

‘both knowingly possessed and intended to distribute the drugs.’” United States v.

Campbell, 986 F.3d 782, 807 (8th Cir. 2021) (quoting United States v. Morales, 813

F.3d 1058, 1065 (8th Cir. 2016)). On appeal, Brown’s argument for reversal is

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cursory. It does not convince us that we should displace the role of the jury. See

United States v. Hollingshed, 940 F.3d 410, 417 (8th Cir. 2019). And, reviewing the

record, we are convinced that there was sufficient evidence from which a reasonable

jury could find each element of the offense beyond a reasonable doubt.

IX.

Brown also argues that the district court abused its discretion in denying his

motion for a new trial. “[T]he key question [is] whether a new trial is necessary to

prevent a miscarriage of justice.” Manning v. Jones, 875 F.3d 408, 410 (8th Cir.

2017) (citing Dindinger v. Allsteel, Inc., 853 F.3d 414, 421 (8th Cir. 2017)); see

Broeker, 27 F.4th at 1335 (stating abuse of discretion as standard of review).

“Federal Rule of Criminal Procedure 33(a) provides that a district court ‘may

vacate any judgment and grant a new trial if the interest of justice so requires.’”

Broeker, 27 F.4th at 1335. But such Rule 33 motions are “disfavored,” and we have

instructed district courts to exercise “Rule 33 authority sparingly and with caution.”

Id. (citations omitted). Indeed, new trials are “reserved for exceptional cases in

which the evidence preponderates heavily against the verdict.” United States v.

Stacks, 821 F.3d 1038, 1045 (8th Cir. 2016) (quoting United States v. Knight, 800

F.3d 491, 504 (8th Cir. 2015)). This case does not present us with that exceptional

circumstance.

At the district court, Brown argued he was entitled to a new trial based on the

failure to instruct the jury on “mere-presence” and the 404(b) rulings. We have

already examined these issues. To the extent Brown raises other alleged errors, these

were not presented to the district court. In any event, we have addressed these

arguments as well. Based on the record before us, the evidence does not weigh so

heavily against the verdict such that a miscarriage of justice may have occurred, and

consequently “[t]he jury’s verdict must be allowed to stand.” United States v.

Sturdivant, 513 F.3d 795, 802 (8th Cir. 2008) (quoting United States v. Johnson, 474

F.3d 1044, 1051 (8th Cir. 2007)).

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X.

Brown asserts that his trial counsel provided ineffective assistance. “We

normally defer ineffective-assistance claims to 28 U.S.C. § 2255 proceedings.”

United States v. Oliver, 950 F.3d 556, 566 (8th Cir. 2020) (citing United States v.

McAdory, 501 F.3d 868, 872–73 (8th Cir. 2007)) “There may be cases in which trial

counsel’s ineffectiveness is so apparent from the record that appellate counsel will

consider it advisable to raise the issue on direct appeal.” Massaro v. United States,

538 U.S. 500, 508 (2003). But this is not such a case.

First, the evidence underlying Brown’s ineffective assistance claim is not

sufficiently developed to allow direct appeal review. See Oliver, 950 F.3d at 566

(“A developed record in the ineffective-assistance context requires that ‘the district

court . . . created a record on the specific issue of ineffective assistance.’” (quoting

United States v. Wilder, 597 F.3d 936, 944 (8th Cir. 2010))). Second, Brown’s

ineffective assistance arguments ask this court to evaluate, inter alia, trial counsel’s

strategic decisions both before and during trial. Brown’s “claims, complex and

intertwined with trial strategy, are best left for a 28 U.S.C. § 2255 proceeding.”

United States v. Thompson, 690 F.3d 977, 993 (8th Cir. 2012). “For these reasons,

this is not one of the ‘exceptional cases’ in which an ineffective-assistance claim is

ripe for review on direct appeal.” Oliver, 950 F.3d at 567 (quoting United States v.

Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011)).

XI.

Finally, Brown argues for reversal based on the cumulative effect of his

asserted errors. Where none of a defendant’s “claimed errors is itself sufficient to

require reversal,” we may reverse “where the case as a whole presents an image of

unfairness that has resulted in the deprivation of a defendant’s constitutional rights.”

United States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999) (citing United States v.

Steffen, 641 F.2d 591, 598 (8th Cir. 1981)); see United States v. Tyerman, 701 F.3d

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552, 565 (8th Cir. 2012). Based on the record before us, such relief is not appropriate

here.

XII.

We affirm the judgment of the district court.

GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.

In Part III, ante at 5-6, the court addresses Brown’s argument that the

Government improperly introduced statements that he made during a custodial

interrogation before he received a Miranda warning. Brown did not file a pretrial

motion to suppress these statements. The court assumes without deciding that we

nevertheless may review for plain error Brown’s suppression arguments first raised

on appeal. Respectfully, I would not make the same assumption.

Suppression issues must “be raised by pretrial motion if the basis for the

motion is then reasonably available and the motion can be determined without a trial

on the merits.” Fed. R. Crim. P. 12(b)(3)(C). If a defendant fails to make a timely

suppression motion, a court may consider the matter “if the party shows good cause.”

Fed. R. Crim. P. 12(c)(3). In this case, it is undisputed that the basis for the

suppression argument Brown raises on appeal was reasonably available pretrial.

Brown also does not attempt to show good cause for failing properly to raise the

issue in the district court.

Before the 2014 amendment to Rule 12, we would have deemed Brown’s

suppression arguments waived and refused to consider them. See, e.g., United States

v. Green, 691 F.3d 960, 963-65 (8th Cir. 2012). This was, in part, because the pre-

amendment version of Rule 12 expressly stated that a party waives an untimely Rule

12(b)(3) argument absent good cause. The 2014 amendment removed this reference

to waiver. Since then, our cases have grappled with whether unpreserved

suppression issues are waived or whether we might review them for plain error. See,

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e.g., United States v. Hill, 8 F.4th 757, 760 (8th Cir. 2021) (assuming without

deciding the availability of plain-error review).

The matter remained unresolved until our decision in United States v. Pickens,

58 F.4th 983 (8th Cir. 2023). In Pickens, we surveyed the history described above,

noted that the issue was “unsettled,” and then decided the question. Id. at 987-89.

We held that, after the amendment to Rule 12, “waiver continues to be the proper

answer.” Id. at 988. We reasoned that applying the waiver rule prevents undesirable

trial gamesmanship: “If a suppression issue is raised and determined before trial,

the trial goes forward with the government introducing whatever evidence is not

suppressed. Here, the trial went forward with evidence Pickens now claims should

have been suppressed, and the remedy he requests for his untimeliness is an

acquittal!” Id.; see also Davis v. United States, 411 U.S. 233, 241 (1973).

The court wrongly discounts Pickens’s resolution of the issue. See ante at 5

(characterizing Pickens as merely “expressing [a] view”). The views of prior panels

bind us. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc)

(“It is a cardinal rule in our circuit that one panel is bound by the decision of a prior

panel.”). I would follow that cardinal rule here. It is true that, after reaching the

conclusion that Pickens’s arguments were waived, we “alternatively review[ed] for

plain error” due to our prior cases’ “inconsisten[cy].” Pickens, 58 F.4th at 988. But

the fact that Pickens conducted plain-error review in the alternative does not render

its holding on the waiver issue any less binding. See Massachusetts v. United States,

333 U.S. 611, 623 (1948) (explaining that where a decision “rested as much upon

the one determination as the other . . . the adjudication is effective for both”); United

States v. Files, 63 F.4th 920, 926 (11th Cir. 2023) (“[A]lternative holdings are as

binding as solitary holdings.” (internal quotation marks omitted)).

Beyond its binding effect, Pickens’s reasoning was sound. The Advisory

Committee made clear that removal of the term “waiver” did not render untimely

suppression motions subject to plain-error review. See United States v. Vance, 893

F.3d 763, 769 n.5 (10th Cir. 2018). Instead, the Advisory Committee’s stated

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purpose was to clarify that, “[a]lthough the term waiver in the context of a criminal

case ordinarily refers to the intentional relinquishment of a known right,” Rule 12

“has never required any determination that a party who failed to make a timely

motion intended to relinquish a defense, objection, or request that was not raised in

a timely fashion.” Advisory Committee’s Notes on 2014 Amendments to Fed. R.

Crim. P. 12.

Reviewing unpreserved suppression issues for plain error would make little

sense, as this case demonstrates. Without a timely motion, the record will rarely be

developed enough for even plain-error review. Here, for example, the court

concludes that the district court did not plainly error in allowing the introduction of

the challenged statements because the “record does not indicate when Brown was

given a Miranda warning or whether the Miranda warning was given before or after

the now-challenged statements were made.” Ante at 6. I would not engage in the

vacuous enterprise of reviewing a nonexistent record for plain error.

In sum, Pickens dictates that Brown waived his suppression arguments.

Because Part III of the court’s opinion does not treat Pickens at controlling, I do not

join it. I concur in the remainder of the court’s opinion and in the judgment.

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