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U.S. v. BROWN, NO. 13-4249

Decided: July 1, 2014

The Fourth Circuit affirmed Brown’s convictions for conspiring to traffic drugs, and for her role in a related murder. The Court concluded that the police did not violate Brown’s Fifth Amendment rights by interviewing her without her attorney present; that the district court did not commit plain error when it left the bench while the jury watched Brown’s taped interview with the police; and that although the district court miscalculated the conversion rate of kilograms to pounds, which enhanced Brown’s sentence, the miscalculation resulted in harmless error.

For many years, Brown ran a drug trafficking operation where she smuggled drugs into the United States from Mexico, and sold them throughout the Northeast. She moved about one ton of marijuana per month, using a portion of the proceeds to invest in real estate in Jamaica. In 2010, Brown was indicted and pled guilty to “bulk cash smuggling” money out of the United States. While in jail, she elected to conduct two interviews with the police to discuss her role in the murder of Michael Knight. Brown’s attorney was not present for either interview, but each time she waived her Miranda Rights prior to speaking with the police. Based on her two interviews and further investigation, the Government brought charges against Brown for conspiring to traffic drugs, and for her role in Knight’s murder. For sentence enhancement purposes, on the drug trafficking charge, the Government had to prove that Brown conspired to traffic 1,000 or more kilograms of marijuana. However, when the jury was charged, all parties miscalculated the proper conversion ratio between kilograms and pounds. The parties believed 2,200 pounds equates to 1,000 kilograms, but 2,200 pounds actually equates to just less than 998 kilograms. Therefore, the Government presented evidence that Brown trafficked 2,200 pounds of marijuana, when it needed to prove she trafficked 2,204.63 pounds. Brown’s attorney initially questioned the conversion but failed to object, and Brown was convicted on all counts.

The Court reasoned that the district court did not err by introducing the videotaped interviews between Brown and the police, although these interviews were conducted without Brown’s attorney present, because she made those statements voluntarily. Furthermore, Brown’s attorney was not constitutionally ineffective under the Sixth Amendment simply because her attorney failed to “insist” in joining the interviews.

The Court also reasoned that the district court’s “vacation from the bench” while the jury watched those taped interviews was not reversible error per se because the district court was “absent for a relatively short time after all the evidence had been presented; no rulings were requested during the court’s absence”; and nothing else “of note” happened in its absence. Furthermore, Brown’s attorney failed to make a timely objection to preserve the error on appeal.

Finally, although the district court mistakenly calculated the kilograms to pounds conversion, Brown’s attorney failed to timely object—rather, her attorney questioned the conversion numbers, but then accepted the district court’s flawed conversion. Thus, the district court’s flawed conversion was a harmless error because the Government presented evidence that Brown trafficked drugs more than 2,204.63 pounds, which was the requisite. In fact, the jury foreperson’s words to the district court seemed to understand that to be the case, and stated that the jury found that Brown trafficked 2,200 pounds “or more.”

Full Opinion

James Bull Sterling