United States v. Brown

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 05-6080
(D. C. No. CR-03-244-T)
LANORVIS DEWAYNE BROWN, (W.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before, TACHA, Chief Circuit Judge, HENRY, and McCONNELL, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Following a jury trial, Defendant-Appellant Lanorvis D. Brown was convicted of

producing counterfeit currency in violation of 18 U.S.C. § 471, and passing counterfeit

currency with the intent to defraud in violation of 18 U.S.C. § 472. The District Court

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
sentenced him to 57 months’ imprisonment. Mr. Brown now appeals both his conviction

and sentence on a variety of grounds. We have jurisdiction under 28 U.S.C. § 1291 and

for the reasons discussed below, we AFFIRM.

I. BACKGROUND

On September 23, 2003, Oklahoma City police arrested two suspects for

attempting to pass counterfeit Federal Reserve Notes. The suspects informed United

States Secret Service agents at the scene that they obtained the counterfeit bills from a

man named “D” (who was later identified as Mr. Brown), and told them the address of the

apartment where they claimed “D” produced the counterfeit bills the night before. The

Secret Service agents immediately arranged surveillance of the apartment complex,

although it was after 2:00 a.m. By 2:45 a.m., two Secret Service agents and three

Oklahoma City Police officers arrived at the apartment; they noticed that the lights were

on and there was movement inside the apartment. They continued to observe the

apartment until approximately 3:15 a.m., when they concluded that someone was awake.

The surveillance team then went to the apartment to conduct a “knock and talk.”

Special Agent Chrisman and Oklahoma City Police Officer Lieutenant Michael

Kelly knocked on the apartment door; the other agent and officers stayed out of view so

as not to overwhelm the person who came to the door. According to the Government’s

witnesses at a suppression hearing, the following events took place: Approximately thirty

seconds after Special Agent Chrisman and Lieutenant Kelly knocked, Rebecca Boone

answered the door fully dressed. The television was on inside the apartment. Special

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Agent Chrisman asked Ms. Boone whether Mr. Brown was there, and she said that he had

just left to run some errands. Special Agent Chrisman then informed Ms. Boone that Mr.

Brown’s name had come up in an investigation of counterfeit currency and asked whether

he could come inside to talk with her. She agreed. At this point, the five-member

surveillance team entered the apartment. Special Agent Chrisman asked whether the

other officers could look around the apartment for Mr. Brown. Again, she agreed, stating,

“Sure, look around.” Ms. Boone later gave the agents and officers permission to search

the apartment for guns, drugs, and a printer used to print counterfeit money.

While the agents were still speaking with Ms. Boone and her roommate,1 who was

also awake in the apartment, Mr. Brown and three others arrived. Special Agent

Chrisman informed Mr. Brown that they were there investigating counterfeit currency and

asked him if he minded speaking with them about the matter. Mr. Brown agreed, and the

pair retreated into one of the bedrooms in the apartment. Special Agent Chrisman

informed Mr. Brown of the allegations against him and read him his Miranda rights. Mr.

Brown then admitted that he printed money on a printer he kept in Ms. Boone’s

apartment, but that he had taken the printer to his brother’s house earlier that morning.

He also admitted that counterfeit money could be found in the apartment, along with his

.22-caliber rifle and a box of .22-caliber hollow-point bullets. He then gave the officers

1
Shelly Dennis, Ms. Boone’s roommate, corroborated much of Special Agent’s
Chrisman’s testimony. She testified that none of the officers acted inappropriately, none
had their weapons drawn, and none of them threatened anyone in the apartment.

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permission to search the apartment for the items. The officers located seventy-six

counterfeit $100 bills, the .22-caliber gun and ammunition, as well as an additional box of

.357-caliber ammunition. Mr. Brown was taken into custody that night and charged with

counterfeiting and related charges under Oklahoma law. Five days later, Mr. Brown was

released on bond.

On November 19, 2003 a federal grand jury returned a three-count indictment

against Mr. Brown.2 The first two counts consisted of the counterfeiting

charges—making and passing counterfeit currency with the intent to defraud in violation

of 18 U.S.C. §§ 471 and 472. Count Three charged Mr. Brown with being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). An arrest warrant was

issued, and two Secret Service agents unsuccessfully attempted to execute the warrant at

Mr. Brown’s last known address. They also tried to execute the warrant at the address of

a relative—again, to no avail. Mr. Brown continued to elude apprehension until February

2004, when the Secret Service intensified its search. To that end, Secret Service agents

contacted a number of Mr. Brown’s family and friends, conducted surveillance of the

motels where they believed he was staying, and left several messages on Ms. Boone’s and

Mr. Brown’s cellular telephones. The messages left for Mr. Brown advised him that there

was a warrant for his arrest and asked him to surrender.

Thereafter, Mr. Brown changed the outgoing message on his voicemail; the new

2
The state counterfeiting charges were never pursued.

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message said, “[Q]uit leaving messages on my phone. I know you guys are looking for

me. You’re going to look silly coming through the door. This is the last door you’ll ever

kick in.” On February 9, 2004 Mr. Brown was taken into custody in Sierra Blanca, Texas

where he and Ms. Boone were identified as they were attempting to cross the Mexican

border.

Mr. Brown subsequently filed a motion to suppress evidence obtained as a result of

the “knock and talk” at Ms. Boone’s apartment. He also filed a motion to exclude

evidence of his flight to avoid prosecution. The District Court denied the motions and the

parties proceeded to trial. A jury convicted Mr. Brown of both counterfeiting offenses

but acquitted him of the firearm offense.

The probation office prepared a presentence report (“PSR”), calculating a base

offense level of 15 based on Mr. Brown’s conviction for manufacturing counterfeit

currency. See U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”)

§ 2B5.1(b)(3).3 The PSR also indicated that two two-level sentence enhancements were

warranted: First, because Mr. Brown possessed a firearm in connection with a

counterfeiting offense, see U.S.S.G. § 2B5.1(b)(4), and second, because Mr. Brown

3
More specifically, the base offense level for a conviction under 18 U.S.C. § 471 is
9. U.S.S.G. § 2B5.1(a). When the total loss exceeds $10,000, as it did in this case, two
offense levels are added. U.S.S.G. §§ 2B5.1(b)(1) and 2B1.1. When the defendant also
manufactured or produced the counterfeit currency, or possessed a device used for
counterfeiting, another two offense levels are added. U.S.S.G. § 2B5.1(b)(2)(A). Here,
this resulted in a total offense level of 13. As explained in U.S.S.G. § 2B5.1(b)(3),
however, when § 2B5.1(b)(2)(A) applies “and the offense level determined under that
subsection is less than 15, increase to level 15.”

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obstructed the administration of justice, see U.S.S.G. § 3C1.1. Accordingly, the PSR

calculated a total offense level of 19. This offense level, when combined with Mr.

Brown’s criminal history category of IV, produced an advisory sentencing range of 46 to

57 months’ imprisonment. The District Court agreed that a base offense level of fifteen

was proper and that the firearm and obstruction of justice enhancements were warranted.

It then sentenced Mr. Brown to 57 months.

Mr. Brown now appeals the District Court’s disposition of his pretrial suppression

motions and the District Court’s imposition of the firearm and obstruction of justice

enhancements. We address each in turn.

II. DISCUSSION

A. The District Court Properly Denied Mr. Brown’s Motions to Suppress Evidence.

1. Evidence obtained as a result of the “knock and talk”

Mr. Brown first argues that the District Court should have suppressed all evidence,

including his confession, obtained at Ms. Boone’s apartment because the warrantless

entry and search violated the Fourth Amendment.4 The District Court found that Ms.

Boone consented to the law enforcement officers’ entry and search of the apartment. We

review the reasonableness of a warrantless entry and search de novo. United States v.

4
Because we uphold the District Court’s conclusion that valid consent was given,
we need not address the Government’s contention that Mr. Brown lacks adequate interest
in the apartment to raise a Fourth Amendment challenge to the search. See Minnesota v.
Carter, 525 U.S. 83, 88 (1998) (observing that “standing” to raise a claim related to a
search is a matter of substantive Fourth Amendment law and not a jurisdictional
requirement).

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Gutierrez-Hermosillo, 142 F.3d 1225, 1229 (10th Cir. 1998). “[I]t is well settled that one

of the specifically established exceptions to the requirements of both a warrant and

probable cause is a search that is conducted pursuant to consent.” United States v. Pena,

143 F.3d 1363, 1365–66 (10th Cir. 1998) (internal quotations omitted). If the officers

entered and searched the premises pursuant to valid consent, then such entry and search is

reasonable under the Fourth Amendment. See Gutierrez-Hermosillo, 142 F.3d at

1229–30. “Valid consent is that which is ‘freely and voluntarily given.’” Pena, 143 F.3d

at 1366 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Whether

consent to search was in fact “voluntary” is a question of fact to be determined from the

totality of all the circumstances. Id.

The District Court found no evidence of physical mistreatment or violence on the

part of the law enforcement officers, no evidence of promises or inducements, and no

evidence of deception or trickery. Furthermore, Ms. Boone did not claim, nor was there

any evidence to support a conclusion, that her mental condition or capacity to consent

was limited in any way.5 Finally, although Ms. Boone testified that she was asleep when

the agents and officers arrived and that they entered the apartment without consent and

with their weapons drawn, the court found that her testimony lacked credibility. See

5
We have stated that factors to be considered in determining whether consent is
freely and voluntarily given include: “physical mistreatment, use of violence, threats,
threats of violence, promises or inducements, deception or trickery, and the physical and
mental condition and capacity of the defendant . . . .” United States v. McCurdy, 40 F.3d
1111, 1119 (10th Cir. 1994).

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United States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005) (“The credibility of

witnesses, the weight to be given evidence, and the reasonable inferences drawn from the

evidence fall within the province of the district court.”).6 On appeal, Mr. Brown does not

contest any of these factual findings. Instead, he argues that because the “knock and talk”

leading to the entry into Ms. Boone’s apartment occurred at 3:15 a.m., and because five

law enforcement officers were present at the scene, the circumstances were “inherently

coercive.”

We have previously rejected the notion that, in the absence of evidence of force or

threats, contact with an individual at her home in the early morning hours is inherently

coercive. See United States v. Abdenbi, 361 F.3d 1282, 1288 (10th Cir. 2004). Nor is the

presence of multiple officers inherently coercive or dispositive to the inquiry. Id. Mr.

Brown, however, relies on the Seventh Circuit’s decision in United States v. Jerez which

notes “the special vulnerability of those awakened in the night by a police intrusion at

their dwelling place.” 108 F.3d 684, 690 (7th Cir. 1997); see also Harless v. Turner, 456

F.2d 1337, 1338

(10th Cir. 1972) (finding that consent to search was not voluntarily given when two

officers entered the suspect’s home at 1:45 a.m., routed him out of bed, and questioned

6
The District Court’s credibility determination is bolstered by evidence that Ms.
Boone was not truthful on at least one other subject. Specifically, Ms. Boone testified
that she had not spoken with Mr. Brown on the telephone after her bond was set because
it was a condition of her bond that she would not do so. There was evidence, however,
that Mr. Brown placed numerous calls to both her cellular telephone and her place of
work, and that some of the calls lasted fifteen minutes.

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him before seeking consent); Villano v. United States, 310 F.2d 680, 684 (10th Cir. 1962)

(finding that consent to search was not voluntarily given, in part because officers

awakened suspect in his home before dawn) abrogated on other grounds by Schneckloth,

412 U.S. at 218. Unlike the circumstances in Jerez, Harless, and Villano, the surveillance

team in this case was able to establish that someone in the apartment was awake prior to

initiating the “knock and talk,” a conclusion that was validated when Ms. Boone

answered the door, fully dressed, within thirty seconds, and a television was on in the

background. Based on the foregoing, we conclude that the District Court did not clearly

err in finding that Ms. Boone voluntarily consented to the search of the apartment.

Nevertheless, Mr. Brown argues that even if the consent was valid, the search

performed exceeded the scope of the consent given. Specifically, he argues that the

consent extended only to a search for Mr. Brown and that once it was determined that Mr.

Brown was not present the officers were required to leave the premises. “Whether a

search remains within the boundaries of the consent is a question of fact to be determined

from the totality of the circumstances, and a trial court’s findings will be upheld unless

they are clearly erroneous.” United States v. Kimoana, 383 F.3d 1215, 1223 (10th Cir.

2004). Despite Mr. Brown’s assertions to the contrary, the District Court found that the

officers sought and obtained from Ms. Boone consent not only to search the apartment for

him, but also to search for the printer, the counterfeit money, weapons, and narcotics that

Ms. Boone indicated were in the apartment. This finding is not clearly erroneous.

Moreover, the agents and officers were still lawfully on the premises—Ms. Boone agreed

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to speak with them—when Mr. Brown arrived at the apartment; at that point, Mr. Brown

consented to a search of the apartment, which turned up the incriminating evidence.

Accordingly, we conclude the District Court did not err in admitting the evidence.

2. Evidence of flight to avoid prosecution

Mr. Brown asserts that the District Court erred in admitting evidence that he fled

from prosecution. We have long acknowledged that “the fact of an accused’s flight,

escape from custody, resistance to arrest, concealment, assumption of a false name, and

related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt

itself.” United States v. Martinez, 681 F.2d 1248, 1259 (10th Cir. 1982). Whether

evidence of a defendant’s flight is admissible is a matter committed to the discretion of

the trial court. United States v. Akers, 215 F.3d 1089, 1102 (10th Cir. 2000). “[F]light

evidence carries with it a strong presumption of admissibility,” and we will not reverse

the decision of the district court absent a showing of an abuse of discretion. Martinez,

681 F.2d at 1256, 1258; Akers, 215 F.3d at 1102.

Mr. Brown contends that his conduct cannot be characterized as “flight” because

the Government failed to establish that he was aware either that a grand jury returned an

indictment against him on November 19, 2003 or that a warrant was issued for his arrest.

This Circuit, however, has never required evidence of a direct causal link between an

accused’s knowledge of an indictment or warrant and the accused’s flight. See, e.g.,

United States v. Lepanto, 817 F.2d 1463, 1467 (10th Cir. 1987) (accused fled after being

interviewed by police regarding crime); Martinez, 681 F.2d at 1254 (defendant fled soon

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after crime was committed and after news reports identified him as a suspect). Rather,

the admissibility of the evidence turns on whether it gives rise to a permissible inference

of the accused’s consciousness of guilt, and therefore guilt itself. Martinez, 681 F.2d at

1256; Akers, 215 F.3d at 1103 (stating that guilt of the charged offense need not be the

only possible inference to be drawn from the evidence of the accused’s flight; it need only

be a permissible one). The evidence in this case established that after Mr. Brown was

released from state custody on bond on September 29, 2003, he took steps to conceal his

identity, stayed in various motels in the metropolitan area, and ultimately traveled to

Mexico. There is no dispute that Mr. Brown knew that federal authorities were

investigating him for the crimes charged—he was interviewed by Secret Service agents

concerning his counterfeiting activity, he signed a written confession pertaining to the

same activities, and shortly before he was apprehended at the border, Secret Service

agents left messages on his voicemail indicating that a warrant had issued for his arrest, in

response to which Mr. Brown changed his outgoing message to indicate that he could not

be caught. The District Court did not abuse its discretion in concluding this evidence

gives rise to a permissible inference of guilt of the crime charged. Furthermore, we are

satisfied that the risk of unfair prejudice did not substantially outweigh the probative

value of this evidence. See Fed. R. Evid. 403.

C. The District Court Properly Applied the Sentencing Guidelines

Mr. Brown next argues that the District Court erred in imposing sentencing

enhancements for his possession of a firearm in connection with a counterfeiting offense,

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see U.S.S.G. § 2B5.1(b)(4), and for obstruction of justice, see U.S.S.G. § 3C1.1. In

analyzing a district court’s application of the Guidelines, we review factual findings for

clear error and questions of law de novo. United States v. Apperson, 441 F.3d 1162,

1210 (10th Cir. 2006). “On clear error review, we may reverse only if the district court’s

finding was without factual support in the record or we are left with the definite and firm

conviction that a mistake has been made.” United States v. Tolase-Cousins, 440 F.3d

1237, 1242 (10th Cir. 2006) (internal quotation marks omitted).

1. Enhancement for possession of a firearm

Mr. Brown challenges the District Court’s application of U.S.S.G. § 2B5.1(b)(4),

which provides that if a firearm was possessed “in connection with” the counterfeiting

offense, the defendant’s offense level will be increased by two levels. U.S.S.G.

§2B5.1(b)(4). Specifically, he argues that there was insufficient evidence that he

possessed the firearm “in connection with” the counterfeiting offense.7 A weapon is

possessed “in connection with” counterfeiting when “the weapon in question facilitates or

has the potential to facilitate” the underlying offense. See United States v. Gomez-

7
Mr. Brown also argues that because he was acquitted at trial of being a felon in
possession of a firearm, the District Court violated the Sixth Amendment in imposing the
enhancement. He candidly acknowledges, however, that current Supreme Court and
Tenth Circuit precedent forecloses his argument. See United States v. Watts, 519 U.S.
148, 157 (1997); United States v. Magallanez, 408 F.3d 672, 684 (10th Cir. 2005). He
raises the argument here in order to preserve the issue for possible review by the Supreme
Court. The issue is preserved.

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Arrellano, 5 F.3d 464, 466–67 (10th Cir. 1993).8 The government does not meet this

burden, however, if it shows only a coincidental link between the firearm and the crime,

or if the firearm is completely unrelated to the offense. Id.

At the sentencing hearing, the District Court found that during Special Agent

Chrisman’s interview of Mr. Brown in Ms. Boone’s apartment, Mr. Brown admitted that

he possessed the rifle; he admitted he knew that as a convicted felon, he was not allowed

to possess the rifle; he laughingly said that he used it for hunting; and at that time, no one

else in the apartment claimed ownership of the rifle. Moreover, it is undisputed that Mr.

Brown created and distributed counterfeit money at the apartment where the gun was

found. The apartment was not Mr. Brown’s residence, but was instead a place where he

routinely engaged in criminal activity. The District Court concluded that the rifle’s

proximity to the fruits and instrumentalities of the counterfeiting offense justifies the

conclusion that the rifle was used in connection with the charged offense. Based on these

facts, the District Court’s conclusion that the firearm at least had the potential to facilitate

the counterfeiting offense is not clearly erroneous. See United States v. Matos-

8
Although Gomez-Arrellano involved an enhancement under § 2K2.1(b)(5), which
calls for an enhancement when a firearm is possessed “in connection with another felony
offense,”—in that case, a drug trafficking offense—nothing in the Guidelines suggests
that a different definition of “in connection with” should apply to an enhancement under
U.S.S.G. § 2B5.1(b)(4). See United States v. Gregory, 345 F.3d 225, 229 n.2 (3d Cir.
2003) (applying the same definition of “in connection with” to enhancements under both
§ 2K2.1(b)(5) and § 2B5.1(b)(4)); see also United States v. Taylor, 413 F.3d 1146, 1154
(10th Cir. 2005) (applying the same definition of “in connection with” to enhancements
under both § 2K2.1(b)(5) and § 4B1.4(b)(3)).

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Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999) (upholding application of §2B5.1(b)(4)

because firearms are used in counterfeiting offenses, as in drug offenses, to protect the

defendant’s merchandise).

2. Enhancement for obstruction of justice

Finally, we turn to Mr. Brown’s challenge to the District Court’s application of a

two-level enhancement to his base offense level for obstruction of justice. See U.S.S.G.

§ 3C1.1. The Guidelines provide for a two-level enhancement if the defendant “willfully

obstructed or impeded, or attempted to obstruct or impede the administration of justice

during the course of the investigation, prosecution, or sentencing of the instant offense.”

U.S.S.G. § 3C1.1. “Obstruction of justice includes perjured testimony at trial.” United

States v. Chavez, 229 F.3d 946, 955 (10th Cir. 2000) (citing U.S.S.G. § 3C1.1, cmt.

n.4(b)). To establish that a defendant committed perjury, the district court must find that:

(1) the defendant gave false testimony while under oath; (2) that the false testimony

concerned a material matter; and (3) that the false testimony was willful and not the result

of confusion, mistake, or faulty memory. Id. at 955. In reviewing the district court’s

determination, we defer to the court’s ability to judge the credibility of witnesses. United

States v. Weller, 238 F.3d 1215, 1222 (10th Cir. 2001).

The District Court found a number of inconsistencies between Mr. Brown’s

testimony at trial and the testimony of other more credible sources. For instance, Mr.

Brown testified at trial—contrary to his previous oral and written confessions—that he

never made or passed counterfeit currency. Giving proper deference to the District

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Court’s determination, we find ample evidence to suggest that Mr. Brown committed

perjury with respect to the testimony in question. Accordingly, the District Court did not

err in applying the enhancement.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. Brown’s conviction and sentence.

ENTERED FOR THE COURT,

Deanell Reece Tacha
Chief Circuit Judge

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