NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0066n.06
No. 15-5784
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
) Jan 25, 2017
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MICHAEL O. BROWN, ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)
BEFORE: COLE, Chief Judge; BATCHELDER and COOK, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Michael Brown was arrested for dealing,
and conspiring to deal, cocaine and cocaine base. The court sentenced him to the mandatory
minimum of life imprisonment after an enhancement for prior drug convictions. He appeals his
conviction and sentence, arguing that the district court should have suppressed evidence obtained
as a result of a wiretap because the warrant failed to name him explicitly; the government failed
to provide him with complete notice of the prior convictions it would rely on to support a
sentence enhancement in violation of 21 U.S.C. § 851; a question and answer in the re-direct
misled the jury despite the district court’s instruction to disregard it; and the district court should
have entertained his collateral attack on his 1991 state court conviction. His arguments are
unpersuasive because the application named the main drug dealer with whom Brown
communicated, the government gave Brown sufficient notice of at least two prior convictions,
No. 15-5784, United States v. Brown
there is no indication that the court’s instruction was not heeded, and his collateral attacks on his
state conviction have no merit. We AFFIRM Brown’s conviction and sentence.
I. Factual Background
In 2013, a federal grand jury indicted Brown on charges of conspiring to distribute
cocaine and cocaine base (Count One) and distributing cocaine base on two separate dates
(Counts Nineteen—dismissed at the request of the government before jury selection—and
Twenty). After a trial, the jury found Brown guilty of both remaining counts, and he was
sentenced to the mandatory minimum sentence of life imprisonment.
In 2011, law enforcement officers began investigating a conspiracy to distribute cocaine
and cocaine base. They used surveillance, confidential informants, controlled drug purchases,
and judicially authorized wire and electronic interceptions. The two-and-a-half-year
investigation focused on Calvin Hadley, the suspected kingpin. The Sheriff’s Department and
the Drug Taskforce applied for, and received, a warrant for a wiretap on Hadley’s phone number
in April, 2012. During the initial wiretap, law enforcement picked up a phone number that a
confidential informant associated with Brown. The government sought to introduce into
evidence an audio recording between Hadley and Brown from April 20, 2012, and played the
recording in open court without objection at that time.
After arraignment, Brown’s court-appointed counsel filed a motion to suppress the
wiretap communication, alleging that it had been unlawfully intercepted. The court denied this
motion, and Brown requested replacement of his counsel, which the court granted. His new
attorney filed a motion to suppress the evidence obtained through the wiretap for lack of
necessity, which the court denied. At trial, and after the government had rested and had
introduced the evidence obtained as a result of the wiretap, Brown made an oral motion to
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suppress the recorded calls because the wiretap application did not identify Brown explicitly.
The court asked Brown to file a written memorandum in support of that motion, which he did.
After the government responded, and after hearing argument, the court denied Brown’s motion
to suppress and found no violation of 18 U.S.C. §§ 2515 or 2518(10)(8).
During trial, Hadley and another co-defendant testified that Brown bought cocaine from
them. A third co-defendant testified that Brown also sold cocaine to him. And a video-recorded
controlled drug transaction between the confidential informant and Brown was played in open
court.
During the government’s case in chief the government asked the confidential informant
on redirect examination about prior drug dealings with Brown. Brown’s counsel objected that
this was evidence designed to show propensity. The court sustained the objection and instructed
the jury to disregard the question and answer. The redirect and instruction occurred as follows:
Q. Before you started working for law enforcement, before this December 12
deal, had you bought crack cocaine from Michael Brown before?
A. Before this step? Yes, ma’am.
Brown’s counsel: Objection, Your Honor. In regards to 404(b) issues.
The court: What about that . . . ?
Government: Your Honor, I believe that it was, it was, it came to light in the
cross-examination.
The court: Say that again.
Government: I believe that the cross-examination of this—
The court: Opened the door?
Government: Right.
The court: In what way?
Government: Well, first of all, [Brown’s counsel] asked many questions about
[the confidential informant’s] history as a drug dealer before this. And so, I think
it’s fair to say it was—
The court: No. That doesn’t open the door. No. No. I’m going to instruct the jury
to disregard the last question and this witness’ answer to the last question.
Government: I have nothing further.
Before and after trial, the government gave Brown notice of enhancement pursuant to
21 U.S.C. § 851. The notice that the government provided before trial included four convictions
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that it would rely on for the enhancement, but two of those convictions were part of the same
proceeding, and one of them occurred in a different county from the one mentioned in the notice.
The government corrected the notice after trial and before sentencing.
II. Suppression of Wiretap Evidence
When reviewing the denial of a suppression motion, this court reviews legal conclusions
de novo and factual determinations for clear error. United States v. Garrido, 467 F.3d 971, 977
(6th Cir. 2006). Brown argues that the lower court should have suppressed evidence obtained
through the use of the wiretap because the wiretap application failed to name him explicitly and
so failed to comply with 18 U.S.C. § 2518(1)(b)(iv). He claims that the law enforcement officer
failed to provide a full and complete statement of the facts in the wiretap application by failing to
name Brown despite his knowledge that Brown was involved in the conspiracy. Section
2518(1)(b)(iv) requires that each application include, among other things:
(b) a full and complete statement of the facts and circumstances relied upon by the
applicant, to justify his belief that an order should be issued, including . . . (iv) the
identity of the person, if known, committing the offense and whose
communications are to be intercepted[.]
The wiretap application in this case stated, “Hadley, . . . Cannon, and Darryl Brown, and others
unknown, have committed, are committing, and will continue to commit the following offenses.”
(emphasis added). Michael Brown alleges that the government’s omission of his name was a
“subterfuge to defeat the requirements of the statute and the 4th [A]mendment” because they
knew that he played some role in the drug ring. Appellant Br. at 12.
The Supreme Court addressed this issue in United States v. Donovan, 429 U.S. 413
(1977), holding that “[i]f, after evaluating the statutorily enumerated factors in light of the
information contained in the application, the judge concludes that the wiretap order should issue,
the failure to identify additional persons who are likely to be overheard engaging in
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No. 15-5784, United States v. Brown
incriminating conversations could hardly invalidate an otherwise lawful judicial authorization.”
Id. at 435. The failure to name Brown in the wiretap application did not invalidate the entire
application, and the district court was not required to suppress the intercepted telephone
conversations between Hadley and Brown.
III. Notice of Prior Convictions
“No person . . . shall be sentenced to increased punishment by reason of one or more
prior convictions, unless before trial, . . . the United States attorney files an information with the
court . . . stating in writing the previous convictions to be relied upon.” 21 U.S.C. § 851(a).
“[T]he statute is . . . silent on the specificity with which the government must identify prior
convictions.” United States v. Layne, 192 F.3d 556, 576 (6th Cir. 1999). “[T]he proper inquiry
is whether the government’s information provided the defendant reasonable notice of [its] intent
to rely on a particular conviction and a meaningful opportunity to be heard.” United States v.
King, 127 F.3d 483, 488-89 (6th Cir. 1997) (alteration in original) (internal quotation marks
omitted) (holding that the defendant had notice where the information provided the conviction
and state court where the defendant had been convicted, but an incorrect date).
Here, the government gave Brown notice before trial of four prior felony drug
convictions. But the notice was not entirely accurate. One conviction occurred in a different
county from the one stated, and two other convictions included in the notice were in fact one
conviction. The government filed an amended notice after the trial and twelve days before
sentencing, correcting that mistake and clarifying the convictions. Along with this correction,
the government filed exhibits showing Brown’s convictions. Brown argues that the government
did not give him notice of a controlled substance conviction from 1983 because the pre-trial
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notice stated that it occurred in a different county from the one provided in the notice, and it
stated a date that was about two weeks off.
The first amended notice stated the conviction, the state, and the general date—within
two weeks—of one of the convictions on which it would rely. In King, the court held that the
government’s notice, with an incorrect date of a conviction, provided the defendant adequate
notice of the conviction. 127 F.3d at 489. Here, the government’s first notice provided Brown
adequate notice of its intention to use his 1983 conviction, and it corrected the notice before
sentencing, changing the date from “on or about November 7, 1983” to “on October 27, 1983”
and from “Lincoln County” to “Rutherford County.” Brown was on notice from the time of the
government’s first notice that the government would use his 1983 Tennessee conviction for
selling a controlled substance to enhance his sentence. The point of § 851 is notice and, despite
the government’s initial errors, Brown received notice that the government would rely on his
1983 conviction. The government adequately complied with 21 U.S.C. § 851.
IV. Misleading the Jury
Brown claims that he was unfairly prejudiced and suffered a substantial legal error during
the government’s redirect of the confidential informant in which the government asked the
informant whether he had bought crack cocaine from Brown prior to their most recent
transaction and the court instructed the jury to disregard the question and answer. He argues that
“once the question and answer were given no instruction [could] prevent the jury from deciding
the case on improper grounds. [Brown] was unfairly prejudiced and suffered a substantial legal
error which in the interest of justice is grounds for a new trial.” Appellant Br. at 22.
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We consider five factors to determine whether a mistrial is warranted after an improper
reference:
(1) whether the remark was unsolicited, (2) whether the government’s line of
questioning was reasonable, (3) whether the limiting instruction was immediate,
clear, and forceful, (4) whether any bad faith was evidenced by the government,
and (5) whether the remark was only a small part of the evidence against the
defendant.
Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003). “Generally, ‘the subsequent striking of
erroneously admitted evidence accompanied by a clear and positive instruction to the jury to
disregard it cures the error’ unless the stricken evidence is so prejudicial that its harmful effect
cannot be eliminated.” United States v. Chambers, 944 F.2d 1253, 1263 (6th Cir. 1991) (quoting
United States v. Greene, 400 F.2d 847, 848 (6th Cir. 1968)), superseded on other grounds by
statute as recognized in United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997).
Here, the court sustained Brown’s objection and immediately instructed the jury to
disregard the question and answer. “Prosecutorial missteps have been held harmless in light of
the relative strength of the evidence or because instructions given by the trial court sufficiently
diluted or eradicated any resulting prejudice.” United States v. Solivan, 937 F.2d 1146, 1156
(6th Cir. 1991). The court in this case gave the jury clear and immediate instruction to disregard
the question and answer, and Brown provides no evidence that the instruction failed to cure any
prejudice that the question might have caused.
V. Collateral Attack on State Court Conviction
“Any challenge to a prior conviction, not raised by response to the information before an
increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown
for failure to make a timely challenge.” 21 U.S.C. § 851(c)(2). Brown attacked one of the two
Lincoln County convictions in his response to the information, arguing that the resentencing of
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his 1991 conviction violated his right to a speedy trial and that he was denied the right to
allocute. Although the court corrected his sentence in 2006, Brown argues that this court should
vacate the underlying conviction because his right to a speedy trial was denied during
resentencing and he was not allowed the right to allocute.
Brown cannot collaterally attack his state convictions on account of these alleged
constitutional violations. In Custis v. United States, 511 U.S. 485 (1994), the Supreme Court
declined Custis’s attempt “to attack collaterally prior convictions used for sentence enhancement
beyond the right to have appointed counsel established in Gideon [v. Wainwright, 372 U.S. 335
(1963)].” Id. at 496. It rejected Custis’s argument because “failure to appoint counsel for an
indigent defendant was a unique constitutional defect.” Id. Brown does not claim a violation of
his right to counsel, and his attempt to attack collaterally his prior state court conviction therefore
fails as in Custis.
VI. Conclusion
For the foregoing reasons we AFFIRM Brown’s conviction and sentence.
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