United States v. Brown , 96 F. App'x 112 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4060
NACOE RAY BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-01-377-AMD)
Submitted: March 8, 2004
Decided: April 6, 2004
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GIL-
DEN & RAVENELL, P.A., Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Harry M. Gruber,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
Nacoe Ray Brown appeals his conviction and sentence on three
counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d), (f)
(2000), 18 U.S.C. § 2 (2000). He was convicted after an eight day
jury trial. The district court sentenced him to a term of 300 months’
imprisonment. On appeal, he raises several challenges arising out of
the trial of this matter. We have reviewed the record, together with
Brown’s claims on appeal, and find no basis on which to vacate his
conviction or sentence.
First, Brown alleges the district court erred in denying his motion
to suppress evidence seized from his residence. Contrary to Brown’s
assertion, we find there was ample probable cause on which the fed-
eral magistrate based his issuance of the residential search warrant.
This evidence included a ten page, single-spaced warrant application
which detailed extensively Brown and Kevin Hilliard’s course of ille-
gal conduct during the robberies, which was drafted by a trained and
experienced FBI Special Agent with expertise in bank robberies, who
attested specifically to the probability that proceeds from the bank
robberies, as well as other evidence particularly described in an
attached list, would be contained within Brown’s residence. The total
circumstances support a nexus between Brown’s criminal activity and
his residence sufficient to support issuance of the warrant. See Illinois
v. Gates, 462 U.S. 213, 238 (1983).
Brown next contends that the district court erred in admitting into
evidence facts relating to his attempt to escape from jail while await-
ing trial. He relies on Fed. R. Crim. P. 404(b) to support his argument,
claiming specifically that the evidence was unnecessary and that its
probative value was clearly substantially outweighed by unfair preju-
dice. We review the district court’s decision on the admission or
exclusion of Rule 404(b) evidence for abuse of discretion, United
States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990), and the district
court’s determination relative to the probative and prejudicial value
of Rule 403 evidence likewise is entrusted to the sound discretion of
the trial judge. United States v. Morison, 844 F.2d 1057, 1078 (4th
Cir. 1988). We agree with the district court that the attempted escape
UNITED STATES v. BROWN 3
evidence was properly admissible as evidence of consciousness of
guilt, even absent an express admission by Brown of this fact. See,
e.g., United States v. Peoples, 748 F.2d 934, 936 (4th Cir. 1984);
United States v. Bartelho, 129 F.3d 663, 677-78 (1st Cir. 1997).
Brown next challenges the district court’s decision to excuse a
juror over defense objection, a decision this court reviews for abuse
of discretion. United States v. Nelson, 102 F.3d 1344, 1349 (4th Cir.
1996). The district court considered the circumstances, as well as the
time it would take for the juror to get to the courthouse, and deter-
mined that it was not required by the interest of justice to further
delay the trial to wait for this juror. Moreover, there is no suggestion
here, nor does Brown assert, that the juror was excused because she
was African-American. Rather, he merely complains that she hap-
pened to be but one of two African-Americans on his jury panel.
Because there was a legitimate basis for the district court’s decision
to replace the juror at issue, we find this claim to be without merit.
Brown next asserts that the district court abused its discretion in
permitting Hilliard to read a letter to the jury that Brown wrote on the
basis that the letter contained a reference to Brown’s lack of plea
negotiations with the government. The admission of the plea evidence
here was appropriate because Brown’s statements were not made pur-
suant to plea negotiations. See United States v. Porter, 821 F.2d 968,
976-77 (4th Cir. 1987).
Brown raises several related allegations of error by the district
court relative to the fact that in the middle of trial, Brown’s attorney,
Kenneth W. Ravenell, learned his firm had previously represented in
an unrelated case one of the government’s primary witnesses, Kevin
Hilliard. Brown’s counsel moved to withdraw as Brown’s attorney,
sought a continuance to obtain alternate counsel to cross-examine Hil-
liard, and moved for a mistrial relative to this conflict. After being
advised by the trial court and his counsel, Hilliard testified that he
was willing to give up the confidentiality privilege with defense coun-
sel. Following thorough consideration of defense counsel’s motions
for mistrial and to withdraw, the district court denied the motions.
Following the denial, Mr. Ravenell conducted a vigorous cross-
examination that included questioning Hilliard about his prior arrest
history, his statements to Brown, his bias, and possible inconsisten-
4 UNITED STATES v. BROWN
cies in his story. The detailed cross-examination occupies more than
sixty pages of transcript, and Mr. Ravenell used all available informa-
tion, including information originally learned in a privileged capacity,
to dispute and discredit Hilliard’s testimony and credibility.
While the discovery of an attorney’s prior relationship with a wit-
ness in the middle of a trial is unusual, Brown has presented no con-
vincing evidence of an actual conflict or an adverse effect on
performance such that he was denied effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984), Beaver v. Thompson,
93 F.3d 1186, 1192 (4th Cir. 1996). We find no error in the district
court’s denial of the defense motions for mistrial, for a continuance,
or to withdraw as counsel.
Brown also contends that the district court erred in failing to
declare a mistrial when Hilliard testified that Brown related to him
that Brown’s attorney told Brown he felt he could "beat the case" if
Hilliard did not testify against Brown. We find no extraordinary cir-
cumstances here that would support disturbance of the district court’s
discretionary decision not to grant a mistrial based on the one state-
ment by Brown’s attorney. United States v. Hayden, 85 F.3d 153, 158
(4th Cir. 1996).
Next, Brown challenges the district court’s decision to not allow
testimony from a defense witness who allegedly would have provided
circumstantial evidence that Brown did not commit the robberies. We
find no abuse of the district court’s discretion in excluding this evi-
dence, following its consideration of counsel’s arguments on the
issue. United States v. Carter, 300 F.3d 415, 423 (4th Cir. 2002).
Brown’s final issue on appeal is that the district court erred in giv-
ing a slightly different jury instruction on identification from the
instruction requested by the defense. We review for abuse of discre-
tion the district court’s decision whether to give a particular jury
instruction, and the content of an instruction given. United States v.
Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Because Brown’s
requested identification instruction was substantially similar to the
charge given and did not seriously impair his ability to conduct his
defense, United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995), we
find no reversible error.
UNITED STATES v. BROWN 5
Accordingly, we affirm Brown’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED