United States v. Rodney Brown

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0328n.06

No. 21-5716

FILED
UNITED STATES COURT OF APPEALS Aug 09, 2022
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA, )
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE WESTERN
)
DISTRICT OF TENNESSEE
RODNEY EUGENE BROWN, )
)
Defendant-Appellant. OPINION
)
)

Before: NORRIS, SUHRHEINRICH, and CLAY, Circuit Judges.

SUHRHEINRICH, Circuit Judge. Defendant Rodney Eugene Brown failed to register as

a sex offender after moving from Michigan to Tennessee, as required by the Sex Offender

Registration and Notification Act (SORNA), 34 U.S.C. § 20913. For that he was indicted, tried,

and convicted of violating SORNA’s enforcement provision, 18 U.S.C. § 2250(a). On appeal,

Brown claims that he was denied a right to a fair trial because (1) the district court refused his

proffer to stipulate to his prior sex offense, and (2) the government used a hybrid/fact opinion

witness without providing a foundation for the witness’s opinion testimony and without a limiting

instruction.

Because Brown waived the first argument and the witness’s testimony was properly

admitted as background evidence (and any error was harmless), we AFFIRM.
No. 21-5716, United States v. Brown

In SORNA Congress created “a comprehensive national system for the registration of [sex]

offenders” “[i]n order to protect the public from sex offenders and the offenders against children.”

34 U.S.C. § 20901. The Act requires such offenders to register “in each jurisdiction where the

offender resides.” Id. at § 20913(a). SORNA’s criminal counterpart provides that one who (1) is

required to register under SORNA, (2) travels in interstate commerce, and (3) knowingly fails to

§ 2250(a); United States v. Coleman, 675 F.3d 615, 618 (6th Cir. 2012).

Brown is a two-time sex offender under Michigan law—once in 1987 for third degree

criminal assault, and again in 1992 for second degree criminal sexual conduct. Brown received

probation for the 1987 conviction and eight to fifteen years’ imprisonment for the more serious

1992 conviction, defined as sexual conduct with a “person [who] is under 13 years of age.” See

Mich. Comp. Laws § 750.520c(1)(a). Because the 1992 conviction is a Tier III offense under

SORNA, Brown is required to register (quarterly) for life. See 34 U.S.C. §§ 20911(4)(A)(ii);

20915(a)(3).

Brown was released from custody in 2005 after serving thirteen years in prison and

dutifully registered in Michigan until June 2015, when he moved to Memphis, Tennessee to be

with his partner, Cheryl Lucien. He did not notify either state of the residence change. However,

in July 2018 he applied for a Tennessee identification card. That act alerted the State of Michigan,

which had listed Brown as an absconder. Michigan in turn notified the Tennessee Bureau of

Investigation, who reached out to the Supervisory Deputy United States Marshal James Edge of

the Western District of Tennessee. Edge located Brown in the National Sex Offender Registry,

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No. 21-5716, United States v. Brown

(id.), obtained certified records of Brown’s Michigan convictions, and determined that Brown’s

1992 offense carried a lifetime registration requirement.

Brown was indicted in November 2018 on one count of failing to register as a sex offender

in Tennessee from July 2016 to October 2018. Hoping to keep the nature of his 1992 conviction

from the jury, Brown filed a motion in limine, offering to stipulate to the fact of the 1992

conviction. The government rejected the offer, arguing that both convictions were relevant to the

first and third elements of § 2250(a). Brown’s motion was held in abeyance while Brown changed

counsel.

At the final pretrial conference Brown’s new counsel renewed Brown’s motion in limine,

asking the government to stipulate that Brown “ha[d] been convicted of a sexual offense that

required registration” “without getting into details of the facts of the offenses.” The district court

“underst[oo]d” the “sensitive” nature of the sex offense, but agreed with the government that “it

also define[d] the element of the offense.” The court therefore proposed that Brown stipulate to

the first and third elements of the offense—that he was convicted of a prior offense that required

him to register under SORNA during the timeframe outlined in the indictment, and that Brown

knew this. Brown’s counsel stated that he wouldn’t stipulate to the third element, because Brown’s

“whole defense is that his understanding—his mens rea wasn’t there.” The court then ruled that it

could not require the government to accept the stipulation.

Upon conferring privately with Brown, counsel informed the court that, “We’ll just waive

stipulation, Your Honor. . . . I think it will take away from our defense strategy. . . . You know,

having talked to Mr. Brown, I think that we don’t need to stipulate.”

Edge was the government’s principal witness. He provided some background on the

SORNA legislation, explained how it interfaces with local and state agencies, and described his

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No. 21-5716, United States v. Brown

investigation of Brown. The jury found Brown guilty. The district court sentenced him to forty-

five months’ incarceration and five years of supervised release.

II.

Both of Brown’s issues on appeal concern evidentiary rulings, which we review for abuse

of discretion. United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015); see also United States

v. Odeh, 815 F.3d 968, 982 (6th Cir. 2016) (applying abuse of discretion standard to the district

court’s refusal to order the government to stipulate to a particular fact); United States v. White, 492

F.3d 380, 398 (6th Cir. 2007) (applying the standard to rulings on opinion testimony and expert

testimony). Non-constitutional evidentiary errors are also subject to harmless error review, which

means that “any ‘error . . . that does not affect substantial rights must be disregarded.’” Kilpatrick,

798 F.3d at 378 (quoting Fed. R. Crim. P. 52(a)). It’s up to the government to show harmlessness

by a preponderance of the evidence. Id. We must consider how the error, not isolated but in

relation to all of the testimony, affected the jury. United States v. Baker, 458 F.3d 513, 520 (6th

Cir. 2006).

Non-objected-to errors are reviewed under a plain-error standard. United States v. Hall,

20 F.4th 1085, 1100 (6th Cir. 2022). This requires a defendant to establish (1) an error, (2) that

was obvious or clear, (3) that affected the defendant’s substantial rights, and (4) also “seriously

affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.

Henry, 545 F.3d 367, 376–77 (6th Cir. 2008) (citation omitted). This standard “dovetails with the

analysis of prejudice required for all district court evidentiary determinations.” United States v.

Lopez-Medina, 461 F.3d 724, 745 (6th Cir. 2006).

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No. 21-5716, United States v. Brown

Brown claims the district court erred by not allowing him to stipulate to his prior

conviction, in violation of Old Chief v. United States, 519 U.S. 172 (1997). The government

maintains this issue is not properly before us, however, because Brown waived it. “Waiver is the

intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S.

725, 733 (1993) (citation omitted). An issued waived is not reviewable. Id. at 733. That’s because

it “extinguishes an error under Rule 52(b), so we cannot review the supposed error at all.” United

States v. Montgomery, 998 F.3d 693, 697 (6th 2021) (cleaned up); see also id. at 697–99

(discussing waiver, invited error, and forfeiture doctrines). A defendant “can only waive a right

that he knows of and actively abandons.” Id. at 697. “[A]greeing in open court with a judge’s

proposed course of conduct” by formulating a “plain, explicit concession on the record addressing

the precise issue later raised on appeal,” qualifies as a waiver. See United States v. Mabee, 765

F.3d 666, 673 (6th Cir. 2014) (cleaned up) (citing cases); see also United States v. Jackson, 995

F.3d 476, 484 (6th Cir. 2021) (finding waiver where defense counsel stated that he “couldn’t have,

in good faith, objected to his leadership role,” and therefore the enhancement was proper); United

States v. Abdi, 827 F. App’x 499, 506 (6th Cir. 2020) (finding waiver after defendant conceded

the issue in open court and then changed position on appeal).

As noted, Brown renewed the motion to stipulate at the final pretrial conference, but after

an extended back-and-forth about the government’s right to prove its case, and a conference with

Brown, counsel “agree[d] [that the court] can’t force the Government to stipulate,” and then

expressly “waive[d] stipulation.” That sounds like a “plain, explicit concession on the record

addressing the precise issue later raised on appeal,” see Mabee, 765 F.3d at 673, which means that

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No. 21-5716, United States v. Brown

Brown effectively conceded that the nature of the 1992 conviction and prison term were

admissible—at least for purposes of appellate review.

Not exactly, according to Brown. In his reply brief he states that “the defense pulled its

stipulation request,” Reply Br. 2, because of the district court’s prior rulings that Brown would

have to either stipulate that he was required to register under SORNA during the indicted period

or stipulate to each element of the offense (except that he had moved to Tennessee). Brown claims

that “[f]ailing to agree to the court’s suggested modifications was not a relinquishment of the issue

and did not require further objection to preserve the matter for appeal.” Reply Br. 2 (citing Federal

Rule of Evidence 103(b)). Rule 103(b) provides that “[o]nce the court rules definitively on the

record – either before or at trial – a party need not . . . [make an] offer of proof to preserve a claim

of error for appeal.” Fed. R. Evid. 103(b). Had Brown’s counsel let matters stand after explaining

why he could not stipulate to the third element; he’d probably be right. He was not required to

renew his objection after the court indicated that it could not force the government to stipulate.

But Brown’s counsel did not remain seated: he made a conscious choice to withdraw the request

to stipulate after reading the court’s temperature. That intentional statement walks and talks like

a waiver. And because of that, we cannot review the issue. Olano, 507 U.S. at 733; Montgomery,

998 F.3d at 697.1

1
We note that Brown could not prevail on this issue in any event. Old Chief’s ruling that the government
must accept a defendant’s offer to stipulate to his prior felon status in a prosecution under the felon-in-possession case
statute to prevent unfair prejudice to the defendant, is a “narrow limitation” on the government’s prerogative to prove
its case with probative evidence. United States v. Boyd, 640 F.3d 657, 668 (6th Cir. 2011). As we confirmed in Odeh,
the Old Chief Court “explicitly confined its holding ‘to cases involving proof of felon status,’” Odeh, 815 F.3d at 982
(quoting Old Chief, 519 U.S. at 183 n.7), and we have stayed the course, see United States v. Luck, 852 F.3d 615,
624–25 (6th Cir. 2017) (noting that “this court has consistently rejected” defendants’ attempts “to expand Old Chief’s
exception beyond the issue of felon status”; listing cases).
Relatedly, Brown argues that “[o]nce the court decided not to allow the stipulation, it could not then remove
decision making from the jury” by ruling as a matter of law that the prior conviction was a qualifying sex offense
under SORNA that required him to register for life. (Appellant’s Br. at 11.) That is, he claims that the court “removed
an element of the offense from the jury’s decision-making process—the duty to register.” Appellant’s Br. 12. But,

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No. 21-5716, United States v. Brown

In his second challenge to the evidence, Brown contends the district court erred in allowing

the government to use Edge as both an expert and fact witness because (1) Edge was never

disclosed or qualified as an expert; and (2) the jury was not given a limiting instruction on the

proper use of his testimony. Brown admits that plain error review applies because he did not object

at trial. The government responds that it was not plain error to admit Edge’s testimony because

(1) Edge’s testimony was based on his personal knowledge of the investigation and therefore his

statements were background information and not opinions or interpretations; and (2) to the extent

he crossed the fact/expert line, his was “obviously qualified to give the challenged testimony” and

it was relevant and reliable. The government therefore maintains that there was no plain error.

Alternatively, the government argues any error was harmless anyway because the evidence of

Brown’s guilt was overwhelming.

We agree with the government—Edge was a fact witness, so no limiting instruction was

required. Edge’s explanations as to how the federal, Tennessee, and Michigan sex offender

registries operate, as well as his statements regarding the nature of Brown’s prior conviction and

his offender status, were all properly admitted as background information. The challenged

testimony was “inextricably intertwined with the charged offense,” because it was not only “a

prelude to the charged offense,” but was also “directly probative of the charged offense,” ar[ose]

from the same events as the charged offense,” and “complete[d] the story of the charged offense.”

United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013) (citation omitted). Edge explained how

and why Brown was charged with violating § 2250(a)—by being convicted of a Tier III sex offense

as Brown acknowledges, this court held in United States v. Paul that whether a defendant’s prior conviction must be
registered under SORNA is a matter for the court and not the jury. See United States v. Paul, 718 F. App’x 360, 363
(6th Cir. 2017).

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No. 21-5716, United States v. Brown

under Michigan law and then failing to register after leaving the state based upon his personal

knowledge. Edge did not offer his opinion as to Edge’s guilt, and his statements were based on

materials that the jury possessed and could easily interpret themselves. See United States v.

Manzano, 793 F. App’x 360, 365 (6th Cir. 2019) (holding that a witness who testified about the

meaning of certain legal terms under the Medicare scheme “provided simple background facts (not

opinions) about the Medicare program”); United States v. Young, 847 F.3d 328, 351 (6th Cir. 2017)

(characterizing an agent’s testimony about the wiretap and search warrant application process as

background information); see also United States v. White, 492 F.3d 380, 403 (6th Cir. 2007)

(holding average lay person would not have a working knowledge of Medicare reimbursement

procedures because “[t]he Medicare program operates within a complex and intricate regulatory

scheme”); cf. United States v. Kilpatrick, 798 F.3d 365, 384–85 (6th Cir. 2015) (holding that an

agent’s references to laws and regulations pertaining to campaign contributions to the defendant’s

civic fund was lay opinion testimony because the jury “would have learned the basic contours of

what it means to be a § 501(c)(4) corporation and the campaign contribution limits of certain

organizations” by studying the discovery materials).

Edge was asked to review the properly admitted Michigan Sex Offender Registration

records, and to read the statute for the 1992 conviction. The nature of the 1992 conviction was

also repeatedly listed in those documents. “Explaining the allegations underlying an investigation

does not implicate Rule 701.” Kilpatrick, 798 F.3d at 382. A layperson examining these exhibits

would have ultimately deduced the same. See id. at 385. Likewise, Edge’s statement that Brown’s

duty to register began in 1987 was a fact, not an opinion, and it could be found in the admitted trial

exhibits.

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No. 21-5716, United States v. Brown

Edge’s verification of Brown’s signature on post-prison documents was also proper. That

Edge did not see Brown sign certain documents upon his release from prison in 2005 is immaterial

because Edge became acquainted with Brown’s signature while he was carrying out his

investigation. In United States v. Harris, we held that agents could give lay testimony under Fed.

R. Evid. 901(b)(2) regarding the defendant’s handwriting since they “did not gain this familiarity

for purposes of [the] litigation.” 786 F.3d 443, 448 (6th Cir. 2015) (citing Fed. R. Evid. 901(b)(2)).

Edge encountered Brown’s John Hancock on (1) the Order of Probation in the 1987 conviction,

(2) the Explanation of Duties to Register as a Sex Offender in 2005, (3) the application for a

Tennessee identification card and affidavit in support, (4) Brown’s social security card, Michigan

identification card, and Tennessee identification card.

The testimony also satisfied Rule 701. See Harris, 786 F.3d at 448. Edge had ample time

to compare the signatures during his investigation and the testimony was helpful to the jury in

determining whether Brown had knowledge of his duty to register—the third element of § 2250(a).

See id. at 448–50. And the jury could decide for itself whether that was Brown’s signature because

the documents were in the record. See id. at 450.

Finally, if there was any error, it was harmless. The government presented overwhelming

evidence of Brown’s guilt. See White, 492 F.3d at 398 (reversal is not required unless the

erroneously admitted evidence affected the party’s substantial rights). Brown had two prior

convictions for criminal sexual conduct—in 1987 and 1992. He failed to register in Tennessee as

a sex offender as of November 17, 2020. Brown acknowledged with his initials on the Explanation

of Duties to Register as a Sex Offender Form that he understood those duties. Brown knew to

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No. 21-5716, United States v. Brown

Offender Verification/Update forms in February, March, and June 2015. These forms indicate that

Brown was a Tier III offender, that his registration date was November 27, 1987, that he had to

explained his registration duties in detail—that Brown was required to verify his address by

reporting in-person and providing proof of residency at a local law enforcement agency with

jurisdiction over his residence, and that he was required to report his new address before he

changes residences to another state. Brown’s signature acknowledges receipt of these forms.

Brown’s signature was consistent across various government documents. And his partner Lucien

testified that Brown moved in with her in January or February 2018.

In short, the evidence of Brown’s guilt was overwhelming and any potential error in this

case did not affect his substantial rights.

III.

The judgment of the district court is AFFIRMED.

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United States v. Rodney Brown

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