United States v. Kelvin Brown , 636 F. App'x 157 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4936
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN BROWN, a/k/a Doom,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:13-cr-00110-RGD-TEM-4)
Submitted: November 30, 2015 Decided: January 11, 2016
Before DUNCAN, KEENAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Joseph Kevin
Wheatley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Howard Jacob Zlotnick, Assistant United States Attorney, Newport
News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Brown appeals the district court’s judgment
sentencing him to 687 months of imprisonment pursuant to his
convictions for conspiring to distribute powder cocaine, crack
cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(iii), (b)(1)(B), 846 (2012) (Count 1); two counts of
distributing cocaine, in violation of § 841(a)(1), (b)(1)(C)
(Counts 6, 8); possessing with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 10); two
counts of possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2012)
(Counts 9, 11); and possessing a firearm while a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2012) (Count 12).
Brown’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Counsel states that there are
no meritorious grounds for appeal but questions whether (1) the
district court should have excluded evidence of Brown’s
nickname, “Doom,” (2) the district court judge should have
recused himself due to bias arising from Brown’s pro se status
at trial, and (3) the evidence was sufficient to sustain Brown’s
convictions.
2
Brown filed a pro se brief arguing, in addition, that the
district court erred in (1) giving the jury an Allen 1 charge,
(2) excluding evidence of Brown’s rap career, (3) admitting
evidence of allegedly intimidating Facebook posts, (4) admitting
evidence of a 2008 police chase, (5) depriving Brown of his
right to standby counsel, (6) tolerating prosecutorial
misconduct, (7) failing to order a new trial when the jury
rendered a compromise verdict, (8) prematurely informing the
jury of its option to render a partial verdict, and
(9) instructing the jury, and that (10) the cumulative effect of
these errors warrants reversal, even if no single error warrants
relief. 2 The Government did not file a brief. We affirm.
I
We review objections to the admissibility of evidence under
Fed. R. Evid. 403 for abuse of discretion. United States v.
Forrest, 429 F.3d 73, 79 (4th Cir. 2005). Rule 403 instructs
district courts to exclude otherwise relevant evidence if “its
probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, misleading the jury,
1 Allen v. United States, 164 U.S. 492 (1896).
2
Brown also repeated counsel’s arguments that the evidence
was insufficient to sustain his conviction and that the district
judge should have recused himself due to bias.
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undue delay, wasting time, or needlessly presenting cumulative
evidence.”
Evidence of a defendant’s use of an alias or nickname is
admissible if relevant to identification of the defendant in
connection with the crimes alleged. United States v. Clark, 541
F.2d 1016, 1018 (4th Cir. 1976). But even when relevant, a
defendant’s alias may be inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice.
United States v. Farmer, 583 F.3d 131, 135 (2d Cir. 2009).
Here, we discern no misuse of Brown’s nickname. Brown’s
identity was at issue, as many of the text messages presented to
the jury provided only a nickname. Moreover, that nickname,
“Doom,” does not suggest a propensity to engage in drug
trafficking or to possess firearms illegally. The district
court thus appropriately admitted evidence of Brown’s alias.
II
We review the denial of a motion for recusal for abuse of
discretion. Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co.,
748 F.3d 160, 167 (4th Cir.), cert. denied, 135 S. Ct. 437(2014). A judge must recuse himself when “he has a personal
bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1)
(2012). In order to disqualify a judge, the “bias or prejudice
must, as a general matter, stem from ‘a source outside the
judicial proceeding at hand.’” Belue v. Leventhal, 640 F.3d
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567, 572 (quoting Liteky v. United States, 510 U.S. 540, 545
(1994)). “[J]udicial rulings and ‘opinions formed by the judge
on the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings’
almost ‘never constitute a valid basis for a bias or partiality
motion,’” id. at 573 (quoting Liteky, 510 U.S. at 555), “‘unless
they display a deep-seated favoritism or antagonism that would
make fair judgment impossible,’” United States v. Lentz, 524
F.3d 501, 530 (4th Cir. 2008) (quoting Liteky, 510 U.S. at 555).
Our review of the record discloses no evidence that the
district judge displayed bias or “antagonism that would make
fair judgment impossible.” Lentz, 524 F.3d at 530.
Consequently, the district court did not abuse its discretion in
denying Brown’s motion for recusal.
III
We review de novo the district court’s denial of a Fed. R.
Crim. P. 29 motion for judgment of acquittal. United States v.
Zayyad, 741 F.3d 452, 462 (4th Cir. 2014). We will affirm if,
viewing the evidence in the light most favorable to the
government, “the conviction is supported by substantial
evidence.” United States v. Hickman, 626 F.3d 756, 762-63 (4th
Cir. 2010) (internal quotation marks omitted). “Substantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
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defendant’s guilt beyond a reasonable doubt.” United States v.
Howard, 773 F.3d 519, 525 (4th Cir. 2014) (internal quotation
marks omitted). “A sufficiency challenge presents a heavy
burden, which a defendant will only overcome in cases where the
prosecution’s failure is clear.” Zayyad, 741 F.3d at 462.
A
To obtain a conviction for a drug conspiracy under 21
U.S.C. § 846, the government had to show that Brown (1) agreed
with at least one more person to engage in conduct that violated
21 U.S.C. § 841; (2) had knowledge of the conspiracy; and
(3) knowingly and voluntarily participated in the conspiracy.
Howard, 773 F.3d at 525. Additionally, “in order for the
statutory maximums and mandatory minimums of § 841(b) to apply,”
the Government must demonstrate “that the threshold drug amount
was reasonably foreseeable” to Brown. United States v. Brooks,
524 F.3d 549, 558 (4th Cir. 2008) (internal quotation marks
omitted).
Our review of the record reflects that substantial evidence
supports Count 1, Brown’s drug conspiracy conviction. Multiple
officers observed Brown sell drugs in controlled buys with
confidential informants. Numerous coconspirators explained
Brown’s role as a seller of crack and powder cocaine and
marijuana within the conspiracy. Altogether, the Government
presented extensive testimony, corroborated by text messages and
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police observation, that was more than sufficient for a
reasonable jury to conclude that Brown engaged in the charged
drug conspiracy.
B
Under 21 U.S.C. § 841(a)(1), (b)(1)(C), in order to support
the conviction for Counts 6 and 8, the Government was required
to show that Brown knowingly distributed cocaine. See Howard,
773 F.3d 526 (defining elements of offense). We conclude that
the Government satisfied this burden. As to Count 6, one of
Brown’s coconspirators testified that Brown offered him cocaine
on June 4, 2013, and the next day, that coconspirator purchased
14 grams of cocaine from Brown in a controlled buy. Text
messages, phone recordings, and police observation corroborated
his testimony. As to Count 8, when police raided Brown’s
apartment, they found cocaine, a box of cell phones, a digital
scale, and a loaded handgun, all supporting inferences of an
active distribution business. The district court did not err in
ruling these counts were supported by substantial evidence.
C
To establish Counts 9 and 11, under 18 U.S.C. § 924(c), the
Government had to show that Brown knowingly and unlawfully
possessed a firearm in furtherance of the specified drug
trafficking crime. We hold that a reasonable jury could
conclude that the Government met its burden. As to Count 9,
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while testifying that they witnessed Brown sell cocaine at his
apartment, two of Brown’s coconspirators explained that his
semiautomatic pistol was on the kitchen counter, next to the
drug scales, during the transaction. With respect to Count 11,
in a search of Brown’s apartment, police discovered cocaine and
other paraphernalia of drug distribution near a loaded
semiautomatic firearm with unique stitching on the holster.
Testimony linked the firearm to Brown. As to each count, the
evidence sufficed to permit the jury to find as a factual matter
that Brown possessed the firearm in furtherance of his drug
trafficking activities. See United States v. Moore, 769 F.3d
264, 269-70 (4th Cir. 2014) (identifying elements and standard
of review), cert. denied, 135 S. Ct. 1463 (2015).
D
In order to secure a conviction on Count 12 under 18 U.S.C.
§ 922(g), the Government had to show that Brown had previously
been convicted of a felony punishable by a term of imprisonment
of over one year and had knowingly possessed a firearm that had
traveled in interstate or foreign commerce. See United States
v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc) (defining
offense). The parties stipulated that Brown was a convicted
felon at the time his residence was searched, and the evidence
described above demonstrates that Brown possessed a firearm at
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that time. Accordingly, the Government satisfied its burden of
proof on Count 12.
In sum, we conclude that substantial evidence supports all
of Brown’s convictions.
IV
In accordance with Anders, we have reviewed the record in
this case and the issues raised in Brown’s pro se supplemental
brief, and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Brown, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Brown requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Brown. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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