United States v. Brown

88 F.4th 750

UNITED STATES of America, Plaintiff - Appellee v. Richard Ladavid BROWN, Jr., also known as Richard Lee David Brown,also known as Junior Brown, Defendant - Appellant

No. 22-2343

United States Court of Appeals, Eighth Circuit

Submitted: June 16, 2023

Filed: December 13, 2023

Appeal from United States District Court for the Southern District of Iowa - Central

Counsel who presented argument on behalf of the appellant and appeared on the brief was Derek Robert LaBrie, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was MacKenzie Benson Tubbs, AUSA, of Des Moines, IA.

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

KELLY, Circuit Judge.

A jury found Richard Lee David Brown guilty of possession with intent to distribute a controlled substance. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851. Brown appeals his conviction, alleging multiple pre-trial and trial-related errors. We affirm.

I.

At about 5:00 a.m. on November 18, 2020, law enforcement executed a search warrant at an apartment on Clark Street, in Des Moines, Iowa.¹ Brown, Kenny Smart, and Smart's girlfriend, Dionne Dibble, were present when officers arrived. Lisa Harper, the tenant of the apartment, was not.

When officers first entered the apartment, they saw a man—Brown—running towards the kitchen. They secured Brown, and then searched the three-bedroom apartment.

In the first bedroom, officers found Smart, his tablet, a firearm and ammunition, over a thousand dollars of cash belonging to Smart, and Dibble's cell phone. In the third bedroom, law enforcement found drugs—much of which was later determined to be cocaine base—and drug paraphernalia. On the bed were drugs in plastic bags, along with a hat, a jacket, and a cell phone with a blue case. No fingerprints were found on this evidence, although law enforcement later testified that finding identifiable prints on drug packaging is "[v]ery, very rare." In a still shot from a surveillance video taken of the apartment building the day before, Brown was seen wearing a hat and jacket that looked like those found on the bed.

Later that day, Special Agent Brandon West interviewed Brown. Brown told Agent West that he had stayed in the third bedroom the previous night. Brown also described his cell phone and told Agent West his cell phone number, both of which matched the phone found on the bed in the third bedroom. In Brown's pocket, law enforcement found $590 in cash, which they photographed.

Brown was indicted on one count of possession with intent to distribute cocaine base. His first attorney was appointed in late November 2020, and Brown requested—and received—his first continuance soon after his arraignment. Brown's first attorney was permitted to withdraw on February 18, 2021, and his second attorney was appointed that same day. In October 2021, Brown's second attorney twice requested that trial be continued, but the district court² denied these requests. Brown's second attorney was allowed to withdraw the following month, and the court granted Brown a continuance "to provide the reasonable time necessary for effective preparation."

On December 1, 2021, Brown's third attorney—who was ultimately Brown's trial counsel—was appointed. He initially represented to the court that he would be ready for trial on January 31, 2022. But on January 3, 2022, he filed a motion to continue trial, explaining that he had not appreciated the amount of discovery or the extent of his client's requests for additional investigation and in-person meetings. The court denied the motion.³

Brown's trial began on January 31, 2022. The government called Lometa Welch as one of its witnesses. She testified that she went to the Clark Street apartment on the morning that the search warrant was executed, "not long before" the police arrived, to buy crack cocaine. She said she waited by the front door while Lisa Harper got the crack from Brown. Welch claimed that she knew the crack came from Brown because she heard Harper say his name when Harper went into the bedroom, and Welch recognized Brown's voice in response. The government also introduced evidence of Brown's two previous controlled substance related convictions, as well as evidence related to Smart. The jury heard that Smart was arrested on the day the Clark Street apartment was searched, and that he was charged, tried, and found guilty of possession of a firearm as a felon and use of a firearm in furtherance of a drug crime. The jury also heard that Smart not only sold drugs, but that he did so out of the Clark Street apartment, where he also cooked cocaine powder into cocaine base (or crack). As relevant on appeal, the government also introduced into evidence the photograph of Brown's cash and the still shot from the surveillance video taken of the apartment building the day before the search that captured Brown wearing the hat and jacket that looked like those found in the third bedroom.

At the conclusion of the government's case, Brown moved for judgment of acquittal, which the court denied. He then asked that a "mere presence" instruction be given to the jury, but the court denied the request. The jury returned a guilty verdict. The district court denied Brown's motion for a new trial, and sentenced him to a 264-month term of imprisonment and 6 years of supervised release. He timely appeals and raises multiple issues.

II.

As an initial matter, Brown moves to expand the record on appeal and asks us to consider evidence not presented to the district court. But "[a]n appellate court can properly consider only the record and facts before the district court and thus only those papers and exhibits filed in the district court can constitute the record on appeal." United States v. Brewer, 588 F.3d 1165, 1171 n.4 (8th Cir. 2009) (quoting Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 559-60 (8th Cir. 2008)); see Faidley v. United Parcel Serv. of Am., Inc., 889 F.3d 933, 942 n.7 (8th Cir. 2018) (en banc); see also Fed. R. App. P. 10(a) (defining record on appeal).

Because the documents that Brown wants us to consider "were presented for the first time on appeal, 'they are not part of the record for our review,' and we cannot consider them." C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629 n.4 (8th Cir. 2010) (quoting Bath Junkie, 528 F.3d at 560); see Midwest Fence Corp. v. U.S. Dep't of Transp., 840 F.3d 932, 946 (7th Cir. 2016) ("As a general rule, we will not consider evidence on appeal that was not before the district court when it rendered its decision. Adding new evidence would essentially convert an appeal into a collateral attack on the district court's decision." (citations omitted)); cf. Fed. R. App. P. 10(e)(2) (allowing errors in, and omissions from, the record to be remedied in limited circumstances not present here). Consequently, we deny Brown's Amended Motion to Expand the Record on Appeal and we examine his arguments based on the record that was before the district court.

III.

Brown argues that the government improperly introduced statements in which he described his cell phone and provided his cell phone number to Agent West. He asserts that their introduction was improper because he made these statements during a custodial interrogation before he received any Miranda warning.

"[A] motion to suppress evidence [must] 'be raised by pretrial motion if the basis [for] the motion is then reasonably available and the motion can be determined without a trial on the merits.' " United States v. Pickens, 58 F.4th 983, 987 (8th Cir. 2023) (quoting Fed. R. Crim. P. 12(b)(3)(C)) (considering issue in Fourth Amendment context). When a party fails to show good cause for not raising suppression in a pretrial motion, "[w]hether this issue is waived, or whether plain-error review is available, is an unsettled question in our circuit." Id. at 988 (expressing the view that waiver is "the proper answer," but nonetheless reviewing suppression argument not raised to district court for plain error); see United States v. Thornton, No. 22-2790, 2023 WL 4994508, at *2 (8th Cir. Aug. 4, 2023) (per curiam) (unpublished) (reviewing defendant's argument to suppress evidence "under a plain-error standard," when the argument was neither "raised by pretrial motion, nor raised at all to the district court").

Brown's argument that his pre-Miranda statements should be suppressed was not raised to the district court, and he has not offered good cause for his failure to do so. Assuming without deciding that plain error review is available to Brown, we review for plain error. See Pickens, 58 F.4th at 988 (first citing United States v. Hill, 8 F.4th 757, 760 (8th Cir. 2021) (per curiam); and then citing United States v. Bernhardt, 903 F.3d 818, 824 (8th Cir. 2018)). "To obtain relief . . . [Brown] must show an obvious error that affected his substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings." Bernhardt, 903 F.3d at 824-25 (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Our review of this issue is confined to the record before us on appeal, and Brown's argument relies on information outside that record. The evidence at trial—and before us now—included testimony that soon after the officers entered the Clark Street apartment, Brown was handcuffed. The record does not indicate when Brown was given a Miranda warning or whether the Miranda warning was given before or after the now-challenged statements were made. Because we can "properly consider only the record and facts before the district court," Brewer, 588 F.3d at 1171 n.4 (citation omitted), we cannot conclude the district court plainly erred in allowing the statements into evidence.

IV.

Brown argues that, at trial, the government offered and relied on Lometa Welch's uncorrected false testimony, in violation of his Due Process rights. Because he did not...