United States v. Brown , 631 F. App'x 605 ( 2015 )


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  •                                                                           FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    November 20, 2015
    TENTH CIRCUIT
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                       No. 14-3105
    (D.C. No. 2:12-CR-20066-KHV-JPO-37)
    VERNON BROWN,                                             (D. Kan.)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.
    Defendant-Appellant Vernon Brown was convicted of a conspiracy
    involving various drug offenses. 1 21 U.S.C. § 846. He was sentenced to 120
    months’ imprisonment and five years’ supervised release. 
    5 Rawle 1592
    . He now
    appeals claiming the district court erred in: (1) admitting evidence concerning his
    2010 state conviction for drug distribution; (2) permitting a witness to speak to
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    1
    Conspiracy to manufacture, possess with intent to distribute, and
    distribute 280 grams or more of cocaine base and conspiracy to possess with
    intent to distribute and distribute five kilograms or more of cocaine.
    the credibility of a co-defendant witness; and (3) excluding photographs of an un-
    indicted co-conspirator. Our jurisdiction arises under 28 U.S.C. § 1291 and we
    affirm.
    Background
    The DEA conducted a long-term investigation, “Living Large 1,” that
    focused on cocaine trafficking between Mexico and Kansas City, Kansas,
    specifically the 2200 block of Russell Avenue. 
    3 Rawle 102
    , 146, 494. The
    conspiracy uncovered spanned from January 2009 to May 31, 2012. 1 R 68. Co-
    defendant Djuane Sykes supplied the block and sold both powder and crack
    cocaine to several individuals, who would then resell it. 
    3 Rawle 319
    ; 
    4 Rawle 2107
    –08.
    At trial, the government provided ample evidence that one of these individuals
    was Mr. Brown.
    Sykes testified that he and Mr. Brown grew up together and got “into the
    drug game about the same 
    time.” 4 Rawle at 1596
    . He knew that Mr. Brown used
    marijuana and powder cocaine, but never knew him to smoke crack cocaine. 
    Id. at 1598.
    Nevertheless, Sykes testified that during the time of the conspiracy, Mr.
    Brown would purchase from him “anywhere from an eight-ball to a half-ounce
    hard [crack cocaine].” 
    Id. at 1596.
    According to Sykes, Mr. Brown would break
    these into $10 or $20 rocks that he would resell. 
    Id. at 1599.
    Co-defendant Ralph
    Mayo also testified that he and Mr. Brown would sell crack, obtained from Sykes,
    -2-
    on Russell Avenue. 
    5 Rawle 1234
    –35. Upon his arrest, Mr. Brown admitted to
    selling cocaine but claimed that he was not “the big man.” 
    4 Rawle 377
    . At trial, the
    government tied Mr. Brown to a specific sale and purchase.
    A.    November 6, 2010 Sale
    On November 6, 2010, a Kansas City, Kansas Police Department
    confidential informant purchased about .4 grams of crack cocaine from Mr.
    Brown. 
    3 Rawle 1706
    –22. In addition to testimony by two Kansas City, Kansas
    police officers and video evidence, 
    id. at 1706–22,
    2270–82, the government also
    relied upon a 2011 state conviction for this sale, for which Mr. Brown entered a
    nolo contendere plea, 
    id. at 1723–29.
    As proof, the government offered a 2010
    Kansas Sentencing Guidelines Journal Entry of Judgment. 
    Id. Mr. Brown
    objected, arguing that the government had not effectively connected this sale to
    the conspiracy. 
    Id. The district
    court overruled the objection. 
    Id. B. November
    22, 2011 Purchase
    The government also introduced evidence that on November 22, 2011, Mr.
    Brown purchased crack cocaine from Sykes. That day, while government
    informant Kevin Cole, Jr. was in Sykes’s car, Mr. Brown approached and told
    Sykes he wanted to purchase a half-ounce, but did not have the money at the time.
    
    4 Rawle 1659
    . Sykes weighed out four grams of crack cocaine for him, even though
    Mr. Brown only requested 3.5 grams (an eight-ball). 
    Id. at 1660–61.
    When Cole
    asked if it was “soft” or “hard,” Sykes responded that it was “hard,” meaning it
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    was crack cocaine and not powder. 
    Id. at 1343.
    Discussion
    A.    Admission of State Conviction
    Mr. Brown first argues that admitting his state conviction for distribution of
    cocaine violated Federal Rules of Evidence 410 and 803. As evidence of Mr.
    Brown’s participation in the drug conspiracy, the government introduced evidence
    that he pled guilty to the November 6, 2010 offense in state court (in actuality he
    entered a nolo contendere plea) and submitted the journal entry reflecting this
    state conviction. At trial, Mr. Brown objected that the government had not
    sufficiently connected the November 6, 2010 sale to the conspiracy.
    On appeal, Mr. Brown argues for the application of a harmless error
    analysis. Aplt. Br. 15; Aplt. Reply Br. 9. But because Mr. Brown did not object
    at trial on the same grounds now raised on appeal, the correct standard of review
    is for plain error. United States v. Ramirez, 
    348 F.3d 1175
    , 1181 (10th Cir.
    2003). The government argues that Mr. Brown’s failure to assert plain error
    review “marks the end of the road” for his argument. United States v. De
    Vaughn, 
    694 F.3d 1141
    , 1159 (10th Cir. 2012) (quoting Richison v. Ernest Grp.,
    Inc., 
    634 F.3d 1123
    , 1131 (10th Cir. 2011)). Though the government has the
    better argument, it is apparent that Mr. Brown could not make the necessary
    showing for plain error. To show plain error, Mr. Brown would have to
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    demonstrate that admitting the evidence of his state conviction was: (1) error, (2)
    that was plain, (3) that affected his substantial rights, and (4) that seriously
    affected the fairness, integrity or public reputation of his judicial proceedings.
    United States v. McBride, 
    633 F.3d 1229
    , 1233 (10th Cir. 2011) (quoting United
    States v. McComb, 
    519 F.3d 1049
    , 1054 (10th Cir. 2007)). Defendant must show
    all four of these elements and fails to do so.
    The Federal Rules of Evidence explicitly prohibit the use of a nolo
    contendere plea. Fed. R. Evid. 410(a)(2); see also Fed. R. Evid. 803(22)(a) (nolo
    contendere pleas excluded by rule against hearsay); United States v. Rosales-
    Miranda, 
    755 F.3d 1253
    , 1258 (10th Cir. 2014) (defining “plain” as “clear or
    obvious under current law” (quoting United States v. McGehee, 
    672 F.3d 860
    ,
    876 (10th Cir. 2012))). Thus we clearly have an error that is plain. But Mr.
    Brown must also show that the admission of the evidence affected his substantial
    rights—that the error prejudiced him. To do so, he must demonstrate with
    reasonable probability—“sufficient to undermine confidence in the
    outcome”—that if the evidence had been correctly excluded, the outcome of the
    proceeding would have differed. 
    Rosales-Miranda, 755 F.3d at 1258
    (quoting
    United States v. Hasan, 
    526 F.3d 653
    , 665 (10th Cir. 2008)). Mr. Brown cannot
    meet this burden. The government introduced overwhelming evidence to
    independently establish the November 6, 2010 sale and Mr. Brown’s involvement
    in the conspiracy. Mr. Brown’s arguments simply do not undermine confidence
    -5-
    in the outcome, given the remaining evidence pointing to his guilt.
    B.    Officer Jones’s Testimony
    Mr. Brown next argues that the district court erred by permitting DEA Task
    Force Officer (TFO) Eric Jones to testify concerning Djuane Sykes’s credibility.
    At trial, the following exchange occurred between Mr. Brown’s counsel (Mr.
    Kjorlie) and the TFO:
    Q.[Mr. Kjorlie] You heard Mr. Sykes testify during the -- in front of
    the jury, correct?
    A. Correct.
    Q. Are there any things there that he said that you felt might not be
    correct?
    MS. MOREHEAD [government’s attorney]: Judge, I’m going to
    object. He’s asking this witness to pass on the credibility of Mr.
    Sykes.
    MR. KJORLIE: Well, I’m saying is there anything that he said that
    does not correspond with his knowledge as the case investigator.
    MS. MOREHEAD: I’ll withdraw the objection, Judge. I think what
    he’s asking is if he told the truth or not. I’ll not object.
    MR. KJORLIE: I was sloppy. Sorry about that.
    A. Sir, I think Mr. Sykes, along with a couple of other individuals
    that will be testifying here are two of the most --
    MR. CORNWELL [co-defendant Kyle Stephen’s counsel]: I’m going
    to object to that, Judge, that does invade the province of the jury. So
    if he wants to talk about Sykes he doesn’t touch me, that’s fine but if
    he’s going to talk about somebody else that’s going to come up, I’m
    going on object.
    MS. MOREHEAD: I don’t know. Mr. Cornwell I -- guess can he
    object to defense? I guess. I don’t know. But he asked the question,
    Judge, that’s why I withdrew my objection.
    THE COURT: Would you rephrase the question? Are you only
    asking about Sykes?
    MR. KJORLIE: Yeah.
    Q. (By Mr. Kjorlie) I’m just asking about Mr. Sykes.
    THE COURT: And whether he has an opinion that Mr. Sykes was
    making statements that were inconsistent with what he had found in
    -6-
    his investigation?
    MR. KJORLIE: Correct.
    THE COURT: Okay. You can answer.
    A. No, sir. I think Mr. Sykes was exceptionally credible.
    Q. (By Mr. Kjorlie) Now, this area of credibility, I guess we’re not
    going to make that decision, the jury’s going to make it, correct?
    A. (No response.)
    Q. Right?
    A. Ultimately it is up to them, yes, sir.
    
    4 Rawle 2176
    –78. Mr. Brown now objects to the TFOs testimony, arguing that the
    district court improperly allowed him to vouch for Sykes, preventing the jury
    from making its own credibility determinations.
    The invited-error doctrine precludes this objection. 2 Here, counsel elicited
    the testimony from the TFO over objection from the other counsel, and also
    clarified (during the questioning) that credibility was the jury’s province. The
    invited error doctrine prevents “a party from arguing that the district court erred
    in adopting a proposition that the party had urged the district court to adopt.”
    United States v. Deberry, 
    430 F.3d 1294
    , 1302 (10th Cir. 2005). Therefore, even
    assuming arguendo that permitting the TFO to speak to Sykes’s credibility was
    error, Mr. Brown, as the party who induced the alleged error, cannot seek to set it
    aside on appeal. See United States v. Burson, 
    952 F.2d 1196
    , 1203 (10th Cir.
    1991). As a strategic decision, counsel asked a question and received an answer.
    2
    The government argues in the alternative that Mr. Brown’s argument on
    this claim also fails under plain error review. Aplee. Br. 28–29. Because the
    issue is easily resolved under the government’s first theory of invited error, we
    need not address plain error.
    -7-
    Mr. Brown cannot now object because the answer was different than expected or
    desired. Whatever counsel’s strategy, we will not consider the error on appeal.
    Mr. Brown’s reliance on our decisions in United States v. Hill, 
    749 F.3d 1250
    (10th Cir. 2014), and United States v. Charley, 
    189 F.3d 1251
    (10th Cir.
    1999), is misplaced. In both Hill and Charley, the government elicited the
    testimony on credibility and the defendant objected. 
    Hill, 749 F.3d at 1256
    –57;
    
    Charley, 189 F.3d at 1261
    . In contrast, Mr. Brown, through counsel, both elicited
    the testimony and now objects to it.
    C.    Exclusion of Photos
    Finally, Mr. Brown argues that the district court erred in refusing to admit
    six photographs of an un-indicted coconspirator, Luis Anselmo Ortega-Flores,
    drinking and surrounded by women. We review a district court’s decision
    regarding the admissibility of evidence for abuse of discretion. Hinds v. Gen.
    Motors Corp., 
    988 F.2d 1039
    , 1047 (10th Cir. 1993) (citing Durtsche v. Am.
    Colloid Co., 
    958 F.2d 1007
    , 1011 (10th Cir. 1992)). At trial, the government
    objected to the photos as irrelevant. Counsel argued that the photos provided a
    contrast between his client’s lifestyle and the lavish lifestyle of Ortega-Flores.
    According to Mr. Brown, these photos tended to show that Mr. Brown could not
    be a member of the “Living Large” conspiracy because he was not “living
    large”—he did not benefit from the conspiracy’s rewards. The district court
    excluded the evidence as irrelevant to Mr. Brown’s membership in the conspiracy,
    -8-
    noting that the government had not put Mr. Brown’s lifestyle in issue. We find
    no abuse of discretion. The evidence was clearly tangential.
    AFFIRMED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -9-