Petition for Writ of Certiorari — Brown v. United States

()) Supreme Court, U.S.

|

FILED

uo, ¥ 11508 APR -5 2002

OFFIGE OF THE GLafix

in the

Supreme Court

of the

United States

CARL BROWN,

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Kevin M. Schad

8240 Beckett Park Dr.

Indian Springs, OH 45011

(513) 870-4980

Counsel for Petitioner

— a ee ee ~ v

ann te by 2h, RMA cats Yin Mabie 5 ME a

QUESTIONS PRESENTED

I.

Whether the trial court violated due

process by providing the jury with an

example instruction which had the effect of

directing a verdict for the United States.

i .

Whether the United States exceeded its

authority in prosecuting this case, as there

is no valid basis for federal jurisdiction.

caine: i

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..... .. e ii

TABLE OF AUTHORITIES ....... iv

OFrinaue Beas «3 «2 is © wa eee 2

VURSEULGE RUE ¢ 6 4s 4 oe Se eee 2

CONSTITUTIONAL PROVISION INVOLVED. . 3

. STATEMENT OF THE CASE. ... . .. e« 5

REASONS FOR GRANTING THE WRIT.

i. The trial court erred in directing

a verdict against the Petitioner

through its example instruction

8

a. The United States’ had no jurisdiction

to prosecute the Petitioner's offense

14

CANCUN 6k ee UR ee eee ee eee 18

APREMIR . 8 ke kt RK eee eee ee eee

iv

TABLE OF AUTHORITIES

Carella v. California, 491 U.S. 263, 109

S.Ct. 2413 (1989)

Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375, 114 S.Ct. 1673 (1994)

Re ere ear) Cre eee ar 14

Powell v. Galaza, --- F.3d ---, 2002 WL

Spee C8 ©. BOOS vnc x kc cckasceseoes 10

United States v. Peterson, 236 F.3d 848 (7

ety > EA ee ee a 15

United States v. Turner, 272 F.3d 380 (6 ¢.

aa olin A nS eg RE eer ge a ORS DR 16

No.

in the

Supreme Court

of the

United States

CARL BROWN

Petitioner,

vs.

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Carl Brown,

2

respectfully prays that a writ of

certiorari issue to review the judgement

and opinion of the United States Court of

Appeals for the Sixth Circuit, entered in

the above-entitled proceeding on January 7,

2002.

OPINION BELOW

The opinion of the Court of Appeals

for the Sixth Circuit is reported at 276

F.3d 211 (6 C. 2002) That determination

is attached hereto in Appendix 1. The

Petitioner petitioned for rehearing en

banc, which was denied on March 1, 2002

(unpublished). That decision is attached

hereto as Appendix 2.

JURISDICTION

The judgment of the United States

Court of Appeals for the Sixth Circuit was

entered on January 7, 2002. This petition

for a writ of certiorari has been filed and

docketed within the time prescribed. The

Jurisdiction of this Court is invoked under

28 U.S.C. §1291 and Supreme Court Rule 12.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United

States Constitution provides:

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in case arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offence to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty or property, without due

process of law; nor shall private property

4

be taken for public use, without just

compensation.

5

STATEMENT OF THE CASE

The Petitioner, Carl Brown, was

originally indicted named in a one count

indictment on February 11, 1998, charging

him, along with co-defendant Carl Scruggs,

of one count of attempting to possess with

the intent to distribute cocaine. On

February 27, 1998, a superseding indictment

was filed, adding an additional co-

defendant. The Petitioner plead not guilty

and proceeded to trial. Trial began on

December 7, 1998, and on December 9, 1998,

the jury returned a verdict of guilty. On

April 20, 1999, the Petitioner was

sentenced to 360 months incarceration, to

be followed by 8 years supervised release.

The Petitioner appealed his conviction

and sentence to the Sixth Circuit Court of

Appeals, raising the following issues:

2 The district court abused its

discretion in not allowing in former

testimony of key government witnesses

6

as The united states had no jurisdiction

to prosecute this offense

Be The district court gave an erroneous

instruction

4. The court erred in failing to hold a

hearing on alleged government

misconduct

s. The court was required to hold a

hearing on the appellant's ineffective

assistance claims

6. The court erred in expanding the scope

of redirect

Fe The court erred in not suppressing

evidence from a cooperating witness

On January 7, 2002, the Court denied the

appeal on all grounds. Judge Feiken filed

a dissent in which he contended that the

error in instructing the jury warranted a

new trial. (Appendix 1) A petition for

rehearing en banc was denied on March l,

2002. (Appendix 2)

7

REASONS FOR GRANTING THE WRIT

The Petitioner submits that his Fifth

Amendment right to due process of law was

violated when the trial court, in

responding to a question by the jury,

provided the jury with an example

instruction which in effect directed them

to convict the Petitioner.

The Petitioner also submits that there

was no proper federal jurisdiction in this

case, as the offense proven was a burglary,

which should have been prosecuted under

state law.

8

ARGUMENT

i. The trial court erred in

directing a verdict against the

Petitioner through its example

instruction

The Petitioner submits that the trial

court violated due process by providing the

jury with an example instruction which had

the effect of directing a verdict against

the Petitioner.

During deliberations, the jury had a

question as to when a defendant needed to

have intent to possess the narcotics in

question. The defense suggested that no

response be given, other than to tell the

jury to rely on the instructions already

given. However, the court denied this

suggestion, and instead gave not only an

answer to the question, but also provided

the jury with an example of proving guilt.

Specifically, the court stated

ete eae teem emis:

9

Let's say that a defendant

decided to burglarize a warehouse

with the intention of taking the

goods that they find in the

warehouse and selling them or

doing whatever. The person gets ,

in the warehouse and finds that, ~

in fact, the warehouse is storing

bales of marijuana as well as a

lot of other stuff. The

defendant picks up the bail [sic]

of marijuana and attempts to

leave with the bail [sic] of

marijuana. I'm talking about a

large quantity. Now, the person

entered the warehouse without the

intent necessary to constitute

the attempt — the crime of

attempt to possess with the

intent to distribute marijuana,

but he formed or appears to have

formed or certainly be proof that

he formed the requisite intent

once he determined this [sic]

there was marijuana there and he

determined to remove the

marijuana and transport it to

some other location for

distribution.

Less than ¥ hour later, the jury returned

with a verdict of guilty.

This Court has held, in the case of

Carella v. California, 491 U.S. 263, 109

S.Ct. 2419 (1989), that where a judge gives

an instruction which relieves the

government of its burden to prove each

10

element of the offense beyond a reasonable

doubt, that the instruction violates due

process. 491 U.S. at 265

In the recent case of Powell v.

Galaza, --- F.3d ---, 2002 WL 372936 (g*®

Cc. 2002), the Ninth Circuit has held, under

facts similar to those of the Petitioner's

case, that an erroneous instruction which

effectively directed a verdict for the

prosecution warranted reversal of the

conviction. In that case, during the

testimony of the defendant, the court

instructed the jury that the defendant's

testimony did not negate one of the

elements of the offense, and in fact, did

prove the element for the prosecution. At

the end of trial, the court instructed the

jury to ignore the earlier statements, and

to form its own opinions as to the case.

id. a <--

The Ninth Circuit, in reviewing the

instruction, found that the instruction was

Li

unconstitutional, as it essentially

directed the jury that the element of

specific intent had already been proven to

the satisfaction of the judge. The court

determined that “Any reasonable juror

easily could have understood this as an

instruction that she or he was required to

find the specific intent element

satisfied.” Id.

The court further found that such an

error was not subject to a harmless error

analysis, holding that such an instruction,

which took away the fact finding of the

jury, amounted to structural error,

warranting reversal of the convictions,

finding “Powell's conviction must be

vacated because the court's midtrial

instruction effectively directed the jury

to find for the state on the specific

intent element.” Id. at ---

The trial court's instructions in the

instant case had a similar effect, and

12

thus, require reversal of the convictions.

As Judge Feikens found in his dissent “But

he [the trial judge] moved on and gave them

an example which exactly fit the evidence

in the case. In doing this he took from

them [the jury] the task of finding

necessary intent from the evidence in the

case.” (Appendix 1, p.13)

In the present case, the trial court's

instruction invaded the province of the

jury. The trial court substituted the

words marijuana for cocaine, and warehouse

for house. But other than this, the

example was identical to the facts of the

instant case. By the court providing this

example, and then going further by stating

“but he formed or appears to have formed or

certainly be proof that he formed the

requisite intent once he determined this

"| the court directed a verdict against

the Petitioner. The court's actions in

taking this issue away from the jury

13

requires reversal of the convictions.

14

2 The United States had no jurisdiction

to prosecute the Petitioner's offense

The Petitioner submits that his

convictions must be vacated, as the United

States did not have proper federal

jurisdiction to prosecute him.

“Federal courts are courts of limited

jurisdiction. They possess only that power

authorized by Constitution and statute

." Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375,377, 114 S.Ct.

1673,1675 (1994) In the present case, the

facts do not support federal jurisdiction

over the offense. The United States proved

that the Petitioner committed the state

crime of burglary, nothing more.

The facts of this case were that the

Petitioner and his co-defendant were

alleged to have robbed 3801 Tessland,

Memphis, Tennessee, in November, 1997. At

15

the residence, police found cocaine;

however, there was no evidence that the

Petitioner or his co-defendant were aware

of the presence of cocaine at the time they

were in the premises. The Petitioner was

initially charged in state court for a

state offense; however, the federal

government initiated a prosecution for

possession with the intent to distribute

cocaine, based upon the robbery.

In a case factually similar to that of

the Petitioner, the Seventh Circuit held

that there was no proper federal

jurisdiction. In United States v.

Peterson, 236 F.3d 848 (7 C. 2001), the

Gefendants were accused of robbing a house

of marijuana, guns and cash. The

defendants were charged in federal court

for violations of 18 U.S.C. § 924, as well

as 18 U.S.C. § 1951, a Hobbs Act violation. .

On appeal, the defendants argued that the

government had failed to prove that there

16

was a nexus between their actions and

interstate commerce. The government, in

attempting to prove this connection, relied

on the fact that marijuana was grown

outside the state of Indiana, and currency

was produced outside the state, to show

that the proceeds from the robbery traveled

in interstate commerce. Id. at 853-854 The

court held that this proof was not

sufficient to prove an affect on interstate

commerce, as no evidence had been presented

to prove that an interstate commerce was

affected. The mere fact that items

traveled interstate was not enough, and

therefore, the Seventh Circuit vacated the

convictions. Id. at 857

Another case similar to that of the

Petitioner is United States v. Turner, 272

F.3d 380 (6° C. 2001) In that case, the

Sixth Circuit overturned the convictions of

two defendants based upon a Hobbs Act

robbery conviction. In that case, the

17

defendant had robbed a home of $400,000.

The Government contended that the amount of

money stolen, in and of itself, showed an

affect on interstate commerce. The court

disagreed, finding “when the Government

seeks to satisfy the Act's jurisdictional

nexus by showing a connection between an

individual victim and a business engaged in

anterstate commerce, that connection must

be a substantial one — not one that

fortuitous or speculative.” Id. at 385-386

A similar result should occur in this

case. The facts of this case showed a

robbery of a dwelling. There was no

evidence to show that the Petitioner was

aware there was cocaine at the residence.

Further, the United States did not attempt

to show a nexus between the robbery and

interstate commerce, so as to allow federal

jurisdiction in this case. As such, the

Petitioner's convictions must be reversed.

18

CONCLUSION

The Petitioner requests that this

Court reverse the findings of the Court of

Appeals and the district court, and remand

for further proceedings consistent with

this Court's opinion.

Respectfully submitted,

Kevin M. Schad

Attorney for Petitioner

Schad & Cook

8240 Becket Park Dr.

Indian Springs OH 45011

APPENDIX

1. COURT OF APPEALS DECISION JANUARY

7, 2002

2. DECISION DENYING EN BANC MARCH 1, 2002

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2002 FED App. 0004P (6th Cir.)

File Name: 02a0004p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 99-5613/5687

Vv.

CARL BROWN (99-5613);

CARL SCRUGGS (99-5687),

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 98-20015—Jon Phipps McCalla, District Judge.

Argued and Submitted: Apnil 27, 2001

Decided and Filed: January 7, 2002

Before: NELSON and BATCHELDER, Circuit Judges;

FEIKENS, District Judge.

COUNSEL

ARGUED: Kevin M. Schad, SCHAD & COOK, Cincinnati,

Ohio, for Appellant. Thomas L. Parker, ASSISTANT

The Honorable John Feikens, United States District Judge for the

Eastern District of Michigan, sitting by designation.

l

saci eam dace

kaa a a iin i ia a

2 United States v. Brown, et al. Nos. 99-5613/5687

UNITED STATES ATTORNEY, Memphis, Tennessee, for

Appellee. ON BRIEF: Kevin M. Schad, SCHAD & COOK,

Cincinnati, Ohio, for Appellant. Thomas L. Parker,

ASSISTANT UNITED STATES ATTORNEY, Memphis,

Tennessee, for Appellee. Car] Scruggs, Memphis, Tennessee,

pro se.

BATCHELDER, J., delivered the opinion of the court, in

which NELSON, J., joined. FEIKENS, D. J. (pp. 13-17),

delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge. In their

separate appeals, Defendants Carl Brown and Carl Scruggs

raise identical challenges to their convictions on a single

count of aiding and abetting in the attempt to possess cocaine

with the intent to distribute it, and we will therefore dispose

of the two appeals in one opinion. Both defendants claim that

the district court was without jurisdiction to hear the case and

further erred by refusing to allow into evidence testimony

from a similar state proceeding, failing to hold a hearing to

investigate claims of prosecutorial misconduct, permitting the

government to present the testimony of a witness who agreed

to testify in exchange for a sentence reduction, permitting the

scope of re-direct examination to exceed matters raised on

cross-examination and providing a jury instruction that

required a finding of guilt. Defendant Scruggs also appeals

his sentence, claiming that the court erred by applying

sentencing enhancements. We will affirm the judgment of the

district court.

I.

A federal grand jury indicted Car] Scruggs and Carl Brown

on one count of aiding and abetting in the attempt to possess

cocaine with the intent to distribute it, in violation of 21

U.S.C. § 846 (2001), and 18 U.S.C. § 2 (2001). Shortly

Nos. 99-561 3/5687 United States v. Brown, et al. 3

thereafter, the grand jury retumed a superceding indictment

adding Yolanda Franklin (“Franklin”) as a third co-defendant.

Franklin agreed to plead guilty; Scruggs and Brown each pled

not guilty. The government filed a motion in limine to

prevent Scruggs and Brown from attempting to raise before

the jury any mention of the charges pending against them in

state court arising out of the same set of facts. The court

granted this motion. Brown filed a motion in limine to

exclude Franklin’s testimony on the ground that she had

received something of value, namely a sentence reduction, in

exchange for it. The court denied this motion. Brown and

Scruggs went to trial and were found guilty by the jury.

Scruggs moved for a new trial; this motion was denied. Prior

to sentencing, Scruggs discharged his counsel and proceeded

pro se. The court sentenced him to 329 months in prison, to

be followed by eight years of supervised release. Brown was

sentenced to 360 months in prison, to be followed by eight

years of supervised release. Both defendants filed timely

appeals.

Brown and Scruggs were apprehended while attempting to

remove 3.7 kilograms of cocaine from a home in Memphis,

Tennessee. Yolanda Franklin had informed Brown that

Franklin’s sister, Karon White (who had allegedly been

romantically involved with Brown) had cocaine hidden in her

home. The cocaine had been stashed there by Renard Rice, a

convicted drug-dealer and acquaintance of Karon White.

Brown and Scruggs agreed to attempt to rob White’s home

and split the proceeds from the sale of any cocaine they might

find. While visiting White’s residence—at a time when

White apparently was not at home—Franklin loaned her car

to White’s 16-year-old daughter, Nastassia Crump. Crump

took her younger sisters and her aunt (Tritobia White) to the

store, leaving Franklin alone in the house to search for the

cocaine. She found it in a plastic garbage bag hidden in an

attic access panel in the hallway. She did not disturb the

cocaine, but reported her findings to Brown.

That afternoon, Brown and Scruggs, wearing ski masks and

gloves and carrying guns, entered the White residence. They

4 United States v. Brown, et al. Nos. 99-5613/5687

found four children, one of whom had been able to dial 911

prior to being discovered, and Tritobia White; they restrained

all five with duct tape. When the police arrived, they

apprehended Brown as he was leaving through the back door

of the home. After freeing the children and learning from

them that the robbery had been committed by two men

carrying guns, the officers found Scruggs hiding in the

basement behind a washer/dryer. The officers asked Scruggs

where the weapons were, and he indicated a box from which

the officers recovered two handguns. Brown admitted to a

Drug Enforcement Agency agent that he and Scruggs had

heard about the cocaine from Franklin, and had gone to the

White residence to steal the drugs.

Il. Jurisdiction

Both Scruggs and Brown argue that the federal government

lacks jurisdiction to prosecute them. We review questions of

jurisdiction de novo. United States v. Nash, 175 F.3d 440,

442 (6th Cir. 1999).

The defendants claim that the Supreme Court’s decision in

United States v. Lopez, 514 U.S. 549 (1995), prohibits

Congress from extending the reach of its authority to drug

crimes that occur solely intrastate. This view has been

soundly rejected by this circuit as well as every other circuit

to address the issue. United States v. Tucker, 90 F.3d 1135,

1139 (6th Cir. 1996). See United States v. Brown, No. 97-

1618, 2000 WL 876382, at *13 (6th Cir. June 20, 2000)

(Indeed, every circuit to consider post-Lopez challenges to

the Comprehensive Drug Abuse Prevention and Control Act

has upheld the Act as a valid exercise of Congress's authority

under the Commerce Clause.”); see also, e.g., United States

v. Patterson, 140 F.3d 767, 772 (8th Cir.), cert. denied, 525

U.S. 907 (1998); United States v. Westbrook, 125 F.3d 996,

1009 (7th Cir. 1997); United States v. Edwards, 98 F.3d 1364,

1369 (D.C.Cir. 1996); United States v. Orozco, 98 F.3d 105,

107 (3d Cir.1996); United States v. Kim, 94 F.3d 1247,

1249-50 (9th Cir.1996); United States v. Rogers, 89 F.3d

1326, 1338 (7th Cir.1996); United States v. Lerebours, 87

Nos. 99-561 3/5687 United States v. Brown, et al. 5

F.3d 582, 584-85 (Ist Cir. 1996); United States v. Genao, 79

F.3d 1333, 1336 (2d Cir. 1996); United States v. Wacker, 72

F.3d 1453, 1475 (10th Cir.1995); United States v. Clark, 67

F.3d 1154, 1166 (Sth Cir.1995), vacated on other grounds,

519 U.S. 802 (1996); United States v. Leshuk, 65 F.3d | 105,

1111-12 (4th Cir.1995).

The defendants also claim that federal jurisdiction is

lacking because the government failed to prove that Brown

and Scruggs intended to possess the cocaine, and that the

chief government witness (Franklin) lacked credibility. These

are not challenges to jurisdiction, but rather challenges to

sufficiency of the evidence, and the credibility of Franklin and

the government's ability to prove defendants’ intent does not

call into doubt federal jurisdiction.

Treating these arguments as challenges to the sufficiency of

the evidence, we note that they still fail. The record is replete

with evidence that Brown and Scruggs intended to steal

cocaine from Karon White’s house and distribute it. This

evidence includes Franklin’s testimony that she entered into

an agreement with Brown to steal the cocaine, and that Brown

and Scruggs went to the home at her direction with the

intention of finding the cocaine, selling it and splitting the

proceeds with her. The jury weighed this evidence and

determined that the defendants had imtended to possess the

cocaine. The defendants were free to attack the credibility of

the government’s witnesses, and in fact did so. Unfortunately

for Brown and Scruggs, the jury believed Franklin.

The defendants’ claim that the federal government lacks

jurisdiction to prosecute this case is wholly without merit.

Further, even addressing these claims as arguments against

the sufficiency of the evidence, we hold that they are entirely

without merit.

Ill. Exclusion of evidence from State proceedings

The defendants claim that the district court erred by

granting the government’s motion in limine, which prevented

them from using the testimony of the government's witnesses

6 United States v. Brown, et al. Nos. 99-5613/5687

from the state court aggravated robbery proceedings to

impeach the testimony of those same witnesses in the trial in

federal court. They claim as well that the trial court prevented

them from introducing a tape of the state court preliminary

hearing which, they argue, would have demonstrated that the

testimony of government witnesses at their trial was

inconsistent with statements made by witnesses during the

State proceedings. We review evidentiary rulings for an abuse

of discretion, and we must sustain those rulings unless they

are manifestly erroneous. United States v. Bonds, 12 F.3d

540, 554 (6th Cir. 1993).

The district court found that the state charges were

irrelevant to the federal prosecution. The defendants point to

no specific testimony from the state court proceedings that

would support their claim that the prior statements of these

witnesses were inconsistent with their testimony in this trial.

Neither have the defendants demonstrated how the prior

testimony would have been relevant. Finally, the record

reflects that the government timely provided the tape from the

State court preliminary hearing to the defendants, but the

defendants neither sought to introduce it at trial nor to obtain

any ruling from the court on its admissibility or use for

impeachment purposes. We do not find that the district

judge’s granting of the motion in limine was manifestly

erroneous.

IV. The court’s supplemental jury instructions

The defendants next claim that the court erred in

responding to a legal question posed by the jury. The trial

court is entitled to exercise its sound discretion in deciding

how best to respond to inquiries made by the jury during its

deliberations. United States v. Nunez, 889 F.2d 1564, 1568

(6th Cir. 1989). “In respcnse to a jury's question after it has

begun deliberating, however, a trial judge may and should

make clear the law the jury is bound to apply, though it is not

his province to advise the jury of collateral aspects of its

decision.” Jd. ( quoting United States v. Rowan, 518 F.2d 685,

693 (6th Cir. 1975)).

Nos. 99-5613/5687 United States v. Brown, et al. 7

In this case, the jury asked whether, in order to have had the

intent to possess the drugs, the defendants had to know before

they arrived at White’s house that cocaine was in the house.

The court answered:

It is not necessary for a defendant to know in advance of .

entering the premises that drugs are on the premises in

order for the offense of attempt to possess cocaine with

intent to distribute to occur. It is only necessary that the

defendant form the requisite intent before the defendant

was apprehended or before the police arrived on the

scene. So an individual — and let me give you an

example. Let’s say that a defendant decided to burglarize

a warehouse with the intention of taking the goods that

they find in the warehouse and selling them or doing

whatever. The person gets in the warehouse and finds

that, in fact, the warehouse is storing bales of marijuana

as well as a lot of other stuff. The defendant picks up the

bale of marijuana and attempts to leave with the bale of

marijuana. I’m talking about a large quantity. Now, the

person entered the warehouse without the intent

necessary to constitute the attempt — the crime of attempt

to possess with intent to distribute marijuana, but he

formed or appears to have formed the requisite intent

once he determined this [sic] there was marijuana there

and he determined to remove the marijuana and transport

it to some other location for distribution.

J.A. 379-80. We are troubled by the similarity between the

district court’s example and the evidence presented at trial,

and we think that the supplemental instruction without the

example would have correctly answered the legal question

posed by the jury. We recognize, however, that the court

made a special effort to prevent any error from occurring by

reminding the jury to consider the instructions as a whole, and

further emphasizing that:

And the jury has to, from the evidence that is presented

in this case, determine as to each defendant whether that

individual defendant formed at any time before

8 United States v. Brown, et al. Nos. 99-5613/5687

apprehension the requisite intent. Did they know there

was cocaine and did they, or he, it’s individual, one at a

time, determine to control the cocaine, possess it, remove

it, whatever, with the intent to distribute it.

J.A. 381. On balance, we conclude that the district court’s

response did not constitute an abuse of discretion.

V. Failure to hold a hearing on prosecutorial

misconduct

The defendants assign as error the district court’s failure to

hold a hearing on their allegations of government misconduct

that they believe entitles them to a new trial. We review the

district court’s determinations on the motion for a new trial

for an abuse of discretion. United States v. Seago, 930 F.2d

482, 488 (6th Cir. 1991). The defendants claim that the

prosecution “hid and distorted evidence,” “tampered with

witnesses, threatened witnesses,” including Brown’s mother.

The defendants also allege that the Assistant United States

Attorney committed and suborned perjury. Brown's attorney

cites this circuit’s decision in United States v. Foster, 128

F.3d 949 (6th Cir. 1997), for the proposition that the district

court erred by not holding a hearing on prosecutorial

misconduct. In Foster, which defense counsel miscites as

“Frost,” it was undisputed that the prosecution had threatened

a defense witness with revocation of immunity if the witness

testified at the defendant’s trial. This court noted that this

prosecutorial misconduct was subject.to a harmless error

analysis, and opined that the trial court should have conducted

a hearing to determine whether the misconduct was harmless.

Id. at 954. However, to require the court to undertake a

harmless error inquiry, the defense must first present some

evidence that the prosecutor engaged in some kind of

misconduct.

In the case before us, neither defendant has pointed to any

evidence in the record—or, for that matter, outside the

record—to support a claim of prosecutorial misconduct.

Brown claims that certain pictures presented at trial, showing

the cocaine in two different locations at the crime scene, call

Nos. 99-561 3/5687 United States v. Brown, et al. 9

into question the veracity of statements made on the stand.

We find nothing in the record, however, that lends substance

to defendants’ apparent contention that witnesses lied and

their false testimony is evidence of prosecutorial misconduct.

These claims surfaced for the first time during the sentencing

hearing. The district court listened patiently tg these

allegations when the defendants presented them.' The

transcript shows that neither defendant offered a shred of

evidence beyond the bare allegations of misconduct and

neither defendant requested a hearing on these matters, either

through a formal motion or an oral request. Even if we were

to treat these prosecutorial misconduct claims first raised at

sentencing as an oral motion for a new trial, the motion was

not timely made. We find no abuse of discretion by the trial

court in failing to inquire further.

VI. Ineffective assistance of counsel

We do not address on direct appeal claims of ineffective

assistance unless the record has been sufficiently developed

to provide meaningful factual review. See United States v.

Aguwa, 123 F.3d 418, 423 (6th Cir. 1997)(“Generally,

though, this court will not review [such claims] on direct

appeal because the record has not been sufficiently developed

for assessing the merits of the allegation.”)(internal quotations

omitted). In this case, we have no evidence to evaluate

counsel’s performance at trial. The only indication of defense

counsel’s effectiveness comes from the district court judge,

who, when the defendants raised these claims during the

sentencing hearing, applauded counsel’s performance.

Accordingly, we will defer review of these claims to a post-

conviction proceeding where the record may be fully

developed. See id. (“{OJur court has routinely concluded that

"The government's briefs fairly describe the presentations by Brown

and Scruggs as “diatribes.” We would only add that the sum and

substance of each defendant’s statement was that he was not guilty as

charged, and the district court patiently reviewed the overwhelming

i a to the contrary and declined to grant a new trial or any other

relief.

10 United States v. Brown, et al. Nos. 99-5613/5687

such claims are best brought by a defendant in a post-

conviction proceeding under 28 U.S.C. § 2255 so that the

parties can develop an adequate record on the issue.”)(internal

quotations omitted).

VII. Scope of re-direct examination

During cross-examination of a government witness,

Scruggs’s counsel elicited the information that no fingerprints

were found on the guns or the packages of cocaine. The

defendants claim that the court erred by permitting the

prosecution, on re-direct examination, to ask about gloves

found at the scene of the crime. The scope of redirect

examination is committed to the sound discretion of the court.

United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994).

A keystone of the defense’s case is that Scruggs and Brown

could not have possessed the guns or the cocaine because

their fingerprints were not on either. The suggestion by the

defendant’s counsel that the absence of fingerprints is

evidence that the defendants did not commit the crimes

alleged opened the door to the entirely relevant question of

whether gloves were found at the crime scene. This

assignment of error is meritless.

VIII. Testimony of Yolanda Franklin

In reviewing a motion to suppress testimony, we review

factual findings for clear error; we review legal

determinations de novo. United States v. Williams, 962 F.2d

1218, 1221 (6th Cir. 1992).

The defendants objected to the court’s allowing testimony

from co-conspirator Yolanda Franklin, claiming that the

government had offered her “something of value” in exchange

for her testimony, in violation of 18 U.S.C. § 201(c)(2)

(2001). There is no dispute that Franklin’s plea agreement

included the government’s commitment to file a motion for a

downward departure based on cooperation and substantial

assistance. This circuit has unambiguously held that plea

agreements which contemplate departure motions in exchange

Nos. 99-5613/5687 United States v. Brown, etal. 11

for cooperation do not violate 18 U.S.C. § 201 (c) (2). United

States v. Ware, 161 F.3d 414, 418-19 (6th Cir. 1998). The

district court correctly found that the government’s promise

of a motion for a downward departure did not violate the

Statute. This assignment of error is meritless.

IX. Sentencing enhancements

Finally, Scruggs claims that the court erred in applying

upward adjustments jor weapons possession and the forcible

restraint of children.” In reviewing challenges to a guideline

sentence, an appellate court

shall give due regard to the opportunity of the district

court to judge the credibility of the witnesses, and shall

accept the findings of fact of the district court unless they

are clearly erroneous and shall give due deference to the

district court’s application of the guidelines to the facts.

18 U.S.C. § 3742(e) (2001).

Although at sentencing Scruggs vociferously denied that he

had possessed any guns while at White’s residence or that he

had used duct tape to restrain anyone on the premises, the

district court specifically found that during the defendants’

search for cocaine, Scruggs had constructive possession of

firearms and that the defendants had restrained the victims,

including several children, with duct tape. The district court

made it clear that, having presided over the trial, it was

crediting the trial testimony of the arresting officers and the

victims. The officers had testified that when he was arrested,

Scruggs indicated that the guns could be found in a box where

*The government contends tHat Scruggs waived his objections to

these enhancements by failing to raise them before the trial court. In fact,

although he did not file written objections to the presentence investigation

report (which included both of the enhancements) during the sentencing

hearing, Scruggs emphatically challenged the district court’s findings that

any of the children had been restrained or that he had used any duct tape.

We think this is sufficient, particularly since Scruggs was proceeding pro

se. to preserve his objection.

12 United States v. Brown, et al. Nos. 99-5613/5687

he had hidden them. The victims had testified that both

Scruggs and Brown were armed when they entered the home

and that the defendants restrained them with duct tape. After

reviewing the record, we hold that the district court’s findings

of fact are not clearly erroneous and that its application of the

Guidelines to those facts is clearly correct.

The Guidelines provide for a two-level increase for a drug-

trafficking offense “[i]f a dangerous weapon (including a

firearm) was possessed.” U.S. Sentencing Guidelines Manual

(USSG) § 2D1.1(b)(1) (2001). This enhancement is

applicable unless it is “clearly improbable” that the weapon

was connected to the offense. USSG § 2D1.1, cmt. n.3. We

have held that once the government has established that the

defendant actually or constructively possessed the weapon,

the burden shifts to the defendant to show that it is clearly

improbable that the possession of the weapon was connected

to the offense. United States v. Hill, 79 F.3d 1477, 1485 (6th

Cir. 1996). Scruggs utterly failed to carry that burden.

The Guidelines also call for a two-level increase if the

defendant knew or should have known that a victim of the

offense was a vulnerable victim, defined by the Commentary

as someone “unusually vulnerable due to age, physical or

mental condition.” USSG §§ 3A1.1(b)(1), and 3A1.1, cmt.

n.2. Finally, the Guidelines call for a two-level increase if a

victim was physically restrained in the course of the offense.

USSG § 3A1.3. The district court correctly concluded that

binding children with duct tape invokes both of these

enhancements. Accordingly we hold that the district court did

not err in applying the enhancements.

X.

For the foregoing reasons the district court’s judgment of

conviction and sentence as to each of these defendants is

AFFIRMED.

Nos. 99-5613/5687 United States v. Brown, etal. 13

DISSENT

FEIKENS, District Judge, dissenting. I respectfully dissent

from the majority's opinion. With due respect, the court tries

to paper over the similarity between the district court’s

example and the question asked by the jury - whether in order

to have the intent to possess the drugs, the defendants had to

know before they arrived at White’s home that cocaine was in

the house.

We must take the situation that the judge faced one Step at

atime. The jury asked whether the defendants had to know

before they arrived at White’s house, that there was cocaine

there, in order to have the necessary intent. To this the judge

said no, but he realized that this would not answer the jury’s

question. He correctly inferred that they wanted to know at

what point could intent be found. But in trying to help them

as to this question, he erred. If, at that point, he did not give

the example to the jury that he did and had simply said that

they had to decide whether an individual defendant, at any

time before he was apprehended, had to have formed the

requisite intent, this would have been a proper response to the

jury question. But he moved on and gave them an example

which exactly fit the evidence in the case. In doing this he

took from them the task of finding necessary intent from the

evidence in the case.

The court takes comfort in the judge’s reliance on his

previous instruction to save it from error. The court correctly

cites to U.S. v. Nunez for the proposition that “In response to

a jury’s question after it has begun deliberating [] a trial judge

may and should make clear the law the jury is bound to apply,

though it is not his province to advise the jury of collateral

aspects of its decision.” United States v. Nunez, 889 F.2d

1564, 1568 (6th Cir. 1989) (quoting United States v. Rowan,

518 F.2d 685, 693 (6th Cir. 1975)). Nunez, however, also

teaches that where a previous instruction does not sufficiently

14. United States v. Brown, et al. Nos. 99-5613/5687

inform the jury of a point of law, the judge cannot, in

answering a jury’s query, merely reiterate his or her previous

instruction. See id. “In United States v. Giacalone, 588 F.2d

1158 (6th Cir. 1978), cert denied, 441 U.S. 944, 99 S. Ct.

2162, 60 L.Ed.2d 1045 (1979), we made clear that a

supplemental instruction is one that goes beyond reciting what

has previously been given; it is not merely repetitive.

Reiterating the rule stated in Rowan that a trial court has a

duty ‘to clear up uncertainties which the jury brings to the

court’s attention,’ we stated that the propriety of a

supplemental instruction must be measured “by whether it

fairly responds to the jury’s inquiry without increasing

prejudice.’ Giacalone, 588 F.2d at 1166.” Jd. at 1568. It

follows, therefore, that an erroneous supplemental instruction

cannot be saved by reference to a previous, ambiguous

instruction.

Even had the judge acknowledged his error and retracted

his example, such retraction could not have cured the error.

In Sunderland v. United States, 19 F.2d 202 (8th Cir. 1927),

the defendants were charged with conspiracy and use of mails

to defraud by sale of corporate securities. The judge, in his

charge to the jury, in order to illustrate “the principles of law

that are most directly involved” told the story of the “old gold

brick swindle” placing himself in the story. Sunderland, 19

F.2d at 212. In the example, he and another man make an old

clay brick appear to be a gold brick by filling it with lead and

covering it in gold leaf. A third man arranges for the sale of

the brick agreeing to split the proceeds of the sale. Later,

however, after the defense counsel objected to the charge the

judge rescinded his illustration. “Gentlemen of the jury, I am

persuaded that I made a serious error in using before you and

picking out the common old swindle, the gold brick swindle,

and using that to illustrate the points of law applicable to the

conspiracy and swindling scheme.” /d. at213. However, the

Eighth Circuit held that this could not save such an erroneous

instruction. “It requires no argument to convince that this

‘gold brick’ illustration was unfortunate and prejudicial. This

was finally conceded by the court and the illustration

withdrawn, but we entertain grave doubt whether the

Nos. 99-5613/5687 United States v. Brown, etal. 15

prejudice once created could be removed by a mere

withdrawal of the words.” /d. (citing Rudd v. United States,

173 F. 912 (8th Cir. 1909)). In United States v. Schultz, 235

F.2d 684 (7th Cir. 1956), the Seventh Circuit held similarly.

The trial judge in that case, when ruling on an objection to

witness testimony, said, “*[S ]uppose a man were charged with

committing a robbery, and then the next day he want [sic] and

took the money back, every cent of it. He might still be found

guilty in such an instance, even though he returned every cent

of it.’” Jd. at 685. The judge later repudiated his statement.

However, he then attempted another example. After

instructing the jury to disregard the example he went on to

say, “““It would be more proper probably to say, suppose I

were to go over to Peacock’s somewhere and slip my hand in,

and got a big diamond ring and took it home and then, after

thinking it over, the next day I took it back.’” Jd. at 686. The

Seventh Circuit held that this attempt to cure was also

unsuccessful. “The [first] illustration used by the court was

unfortunate and prejudicial. In fact, in the charge to the jury

the court termed it ‘inept.’... The second illustration was very

little improvement on the first. It is likely the court’s remarks

made a dramatic impression on the jury. ... We think the

illustrations used by the court were prejudicially erroneous.”

Id.

“The standard on appeal for a court’s charge to the jury is

whether the charge, taken as a whole, fairly and adequately

submits the issues and applicable law to the jury.” United

States v. Martin, 740 F.2d 1352, 1360 (6th Cir. 1984)

(rehearing and rehearing en banc denied). It is well

established that “[rjegardless of how overwhelming the

evidence may be, the Constitution delegates to the jury, not to

the trial judge, the important task of deciding guilt or

innocence.” United States v. Mentz, 840 F.2d 315, 319 (6th

Cir. 1988). Therefore, in instructing the jury, a judge may not

invade the jury’s province by unequivocally implying that a

defendant’s guilt has been established.

In a criminal trial, the trial judge and the jury have

well-defined roles, refined over many years of

16 United States v. Brown, et al. Nos. 99-5613/5687

constitutional adjudication. The trial judge instructs the

jury on the law applicable to the issues raised and, in

appropriate circumstances, may comment on the

evidence. United States v. White Horse, 807 F.2d 1426,

1430 (8th Cir. 1986); United States v. Johnson, 718 F.2d

1317, 1322, 1324-25 (Sth Cir. 1983) (en banc); 8A J.

Moore, W. Taggart & J. Wicker, Moore’s Federal

Practice 430.05 at 30-40 (1987). The jury then

independently determines the facts, and applies the law

to those facts, in reaching its fateful decision. White

Horse, 807 F.2d at 1430; Johnson, 718 F.2d at 1325. See

also 2 C. Wright, Federal Practice & Procedure § 485, at

711 (1982). However, the trial judge invades the jury’s

province when, instead of simply instructing on the law,

he applies the law to facts he has determined. See White

Horse, 807 F.2d at 1430 (“when the judge is no longer

deciding the law that applies to the evidence, but rather

is applying the law to the facts—facts that are determined

after assessing the probative value of evidence

introduced at trial - the judge has invaded the jury’s

province.”’).

Id. at 319-20. In the case before us, the district court judge

applied the law to the facts that he determined when he stated,

after giving his troubling example, “Now the person entered

the warehouse without the intent necessary to constitute the

attempt... but he formed or appears to have formed or

certainly be proof that he formed the requisite intent once he

determined this there was marijuana there and he determined

to remove the marijuana and transport it to some other

location for distribution.”

In upholding appellants’ convictions in the face of such a

clearly erroneous instruction, the court fatls to recognize the

power, weight and authority a judge’s opinion has upon a

jury.

But precisely because it was a “last minute instruction”

the duty of special care was indicated in replying to a

written request for further light on a vital issue by a jury

Nos. 99-5613/5687 United States v. Brown, etal. 17

whose foreman reported that they were “hopelessly

deadlocked” after they had been out seven hours. “In a

trial by jury in a federal court, the judge is not a mere

moderator, but is the governor of the trial for the purpose

of assuring its proper conduct and of determining

questions of law.” Quercia v. United States, 289 U.S

466, 469, 53 S. Ct. 698, 699, 77 L.Ed. 1321]. “The

influence of a trial judge on the jury is necessarily and

properly of great weight,” Starr v. United States, 153

U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841, and

jurors are ever watchful of the words that fall from him.

Particularly in a criminal trial, the judge’s last word is apt

to be the decisive word. If it isa specific ruling ona vital

issue and misleading, the error is not cured by a prior

unexceptional and unilluminating abstract charge.

Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402,

405 (1946). Not only did the district judge in this case invade

the jury’s province, but he did so at a Significant time in the

jury’s deliberations. He gave the jury its supplemental

instruction at 2:25 p.m. At 3:10 p.m. the jury entered its

verdict. The short span of time it took for the jury to convict

is an indication of the influence of the judge’s instruction.

I therefore must recommend this case be remanded for a

new trial.

APPENDIX 2

99-5613

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA ) FILED

)Mar 01 2002

Plaintiff-Appellee, )

) LEONARD

) GREEN, Clerk

v. )

) ORDER

CARL BROWN, )

)

Defendant-Appellant. )

BEFORE: NELSON and BATCHELDER,

Circuit Judges, and

FEIKENS*, District Judge.

The court having received a petition

for rehearing en banc, and the petition

having been circulated not only to the

original panel members but also to all

other active judges of this court, and less

than a majority of the judges having

favored the suggestion, the petition for

rehearing has been referred to the original

panel.

The panel has further reviewed the

petition for rehearing and concludes that

the issues raised in the petition were

fully considered upon the original

submission and decision of the case.

Accordingly, the petition is denied. Judge

Feikens would grant rehearing for the

reasons stated in his dissent.

ENTERED BY ORDER OF THE COURT

___LEONARD GREEN

Leonard Green, Clerk

*Hon. John Feikens, Senior United

States District Judge for the Eastern

District of Michigan, sitting by

designation.