# Petition for Writ of Certiorari — Brown v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1079

## Text

()) 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1708%3A1. Public record. Not legal advice.