United States v. Kelvin Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4936

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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.

3
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.

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

4
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

5
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.

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

6
police observation, that was more than sufficient for a

reasonable jury to conclude that Brown engaged in the charged

drug conspiracy.

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.

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,

7
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).

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

8
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.

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