G.R. SMITH, District Judge.
Caught while attempting to rob a Savannah, Georgia credit union, Donald Floyd Brown was prosecuted with Charon Garray Fields and convicted of violating 18 U.S.C. § 2113(a) (attempted bank robbery) plus related offenses, then sentenced to 151 months' imprisonment. CR407-308, doc. 125,
Brown and Fields involved themselves with Joseph Morris, who became an FBI confidential informant. Brown approached Morris about robbing drug dealers and a credit union. Morris (a/k/a the FBI's "CI") kept the FBI informed while consorting with the two men, and the FBI armed him with a recording device. Brown I, 374 F. App'x at 928-29. One Sunday in September 2007, Morris joined Brown in casing a credit union for Brown, Fields, and Morris to rob the next day. Id., 374 F. App'x at 929. Ultimately the men wound up at the Memorial Health Credit Union, with Morris audio-recording the three men:
Brown I, 374 F. App'x at 929-30 (footnote omitted).
Brown contends that his trial lawyer, Peggy A. Kreinest,
is guilty of the crime of bank robbery. 18 U.S.C. § 2113(a).
Before the Eleventh Circuit "Brown point[ed] to a Fifth Circuit case where, even in the context of an attempt charge, the court held that the government must show that the defendant used actual force and violence or intimidation to convict under that provision. See United States v. Bellew, 369 F.3d 450 (5th Cir. 2004). Because the Government here did neither, he argue[d], his conviction is invalid under that provision." Brown I, 374 F. App'x. at 930-31.
Brown's appellate argument had some legs. Some courts hold that even for an attempted robbery count, defendants like Brown must be shown to have actually acted with force and violence (hence, the FBI here jumped the gun by arresting Brown in the credit union's parking lot). See, e.g., United States v. Duffey, 2012 WL 10849 at *7-8 (5th Cir. Jan. 3, 2012) (§ 2113(a) conviction vacated; there was no evidence that defendants acted with force and violence, or intimidation, during incidents at two banks they planned to rob, as required to support their convictions for attempted bank robbery and armed robbery; at one bank the takeover team, armed with guns, drove to the bank and waited in a stolen vehicle for one defendant to initiate the robbery, but he called off the plan at the last minute after a bank patron winked at him, leading him to believe that the patron was aware of the impending robbery, and at a second bank FBI agents observed defendants in two vehicles and arrested them after hearing a defendant say that he was ready to rob the bank).
The Eleventh Circuit noted, however, that: (a) the matter remained undecided in this circuit; (b) the circuits were split on what must be shown on an attempted robbery count; and (c) Kreinest failed to raise this argument before the district below, so only plain-error review was available. But because the circuits were split, the error was not plain, so this claim was denied. Brown I, 374 F. App'x. at 931; see also United States v. Williams, 387 F. App'x. 282, 284-86 (3d Cir. 2010) (no plain error review on unpreserved issue that turned on a circuit split over a statutory interpretation).
Proceeding pro se, Brown insists he has shown Kreinest's ineffective assistance because Weil had a reasonable shot at undoing his § 2113(a) conviction had Kreinest raised the issue below. Kreinest's omission, he contends, ruined his chance at convincing the Eleventh Circuit to join others circuits in requiring more, factually speaking, than what the prosecution proved on Brown's § 2213(a) count. Doc. 172 at 4; doc. 176 at 1-3. Of course,
Crosby, 2012 WL 899263 at * 3; see also id. at * 4-5 (rejecting IAC claim based on counsel's failure to object to § 2213(a) "intimidation element" jury instruction).
No hindsight is being applied here. The case law put Kreinest on notice of the split before Brown's trial, and she evidently failed to research and litigate the issue. Doc. 176 at 1-3. But the government correctly points out that the majority of the circuits have ruled against Brown, doc. 175 at 7 (Second, Fourth, Sixth, and Ninth Circuit cases going against him on this issue); see also United States v. Crosby, 416 F. App'x 776, 779 n. 4 (10th Cir. 2011) (citing that line of authority in a related context), and apparently only the Fifth and Seventh Circuits have ruled that the prosecution must put up proof of an actual act of force, violence, and intimidation. See Duffey, 2012 WL 10849 at *7-8; United States v. Thornton, 539 F.3d 741, 748 (7th Cir. 2008). So, the government concludes, no viable IAC can be advanced. Doc. 175 at 8.
However, the Eleventh Circuit has yet to rule on this issue, so it cannot be said that it is part of any circuit split.
Therefore, this claim fails. But this is an issue debatable among jurists of reason, so Brown should be granted a Certificate of Appealability (COA) and in forma pauperis (IFP) status on appeal.
Brown's next IAC claim against Kreinest requires some additional background. Before the Eleventh Circuit, Weil argued that the district court's instructions to the jury amended the indictment, making the crime with which he was charged broader and thus violating his Fifth Amendment rights. Brown I, 374 F. App'x at 931. Again, the indictment charged Brown with knowingly and willfully attempting to take the funds of a federally insured bank by force and violence, or intimidation. Weil contended that the jury instructions failed to require the government to prove that he used actual force and violence or intimidation. Instead, the court instructed that Brown could be found guilty if he intended to commit the crime and took steps towards doing it — without also instructing that the government had to show that he attempted to take money by force and violence or intimidation.
The Brown I court rejected both arguments: "Brown's first argument is merely the same as his argument that the statute requires a showing of actual violence or intimidation. Like that argument, [Kreinest failed to ] raise it below. And like that argument, because that is not the law in this circuit, there is no plain error." Id. Turning to his second claim, the panel found no error because "`the law is well-established that where an indictment charges in the conjunctive several means of the violating a statute, a conviction may be obtained on proof of only one of the means, and accordingly the jury instruction may properly be framed in the disjunctive.' United States v. Simpson, 228 F.3d 1294 (11th Cir. 2000)." Brown I, 374 F. App'x. at 931.
Brown now faults Kreinest for failing to preserve that claim for Weil to litigate on appeal — that, as the Brown panel's ruling shows, she failed to argue the government's need to show actual violence or intimidation, and thus an instruction authorizing a conviction upon the mere showing that he had taken a "substantial step" toward the commission of the crime was defective. Doc. 172 at 4. The resolution of this IAC claim will be controlled by the resolution of his first IAC claim, so this Court reaches the same result: It fails. But by the same token, it supports the same COA/IFP grant.
In addition to the § 2213(a) (attempted robbery) charge, Brown was also indicted for violating 18 U.S.C. § 922(g)(1) ("Possession of Firearm by Felon"), doc. 44 at 3, and "26 U.S.C. § 5861 — Possession of Unregistered Short — Barreled Shotgun." Doc. 44 at 4.
Weil argued on appeal that there was insufficient evidence to convict Brown of violating 26 U.S.C. § 5861(d) because there was no evidence that (a) he possessed the shotgun; and (b) knew it had been sawed off. The Brown I panel acknowledged that, to show constructive possession (hence, that the defendant had the "intent and power to exercise dominion and control over" the firearm), mere presence near the firearm is not enough. 374 F. App'x. at 933. Instead, the government had to show knowledge of the gun plus the power to possess and thus use it. It did: "[H]ere, the gun was in the back of the van and Brown helped put it in there. Therefore, he had the power to possess the gun. Moreover, the jury in this case could reasonably conclude that Brown was the leader of the venture." Id.
The government cites excerpts from Kreinest's closing-argument showing that she focused on his lack of knowledge and power. Doc. 4 at 11. It would have been fruitless, it argues, for her to argue that he lacked knowledge of the shotgun's length. Id. at 11-12. Brown disagrees, contending that she should have argued both, because he was charged with violating statutes that turned on both, so she at least had a shot at winning an acquittal of the § 5861(d) charge even if she lost on the broader-knowledge based, § 922(g)(1) charge. Doc. 176 at 5-6.
Brown's argument has merit. It would not have been inconsistent for Kreinest to argue that (1) the gun was not Brown's (what she argued); nor (2) that his knowledge of its length was ever proved beyond a reasonable doubt (what she did not argue). And on point (2) courts are reasonably demanding. See Staples v. United States, 511 U.S. 600, 602 (1994) (the government must prove beyond a reasonable doubt that the defendant knew the weapon he possessed had the characteristics that brought it within the statutory prohibition); United States v. Spinner, 152 F.3d 950, 957 (D.C. Cir. 1998) (reversing a conviction for possession of a semiautomatic assault weapon for lack of evidence that the rifle had a "pistol grip that protruded conspicuously beneath the action of the weapon," as required by 18 U.S.C.A. § 921(a)(30)(B)(ii)); see generally FIREARMS LAW DESKBOOK § 10:7 (Aug. 2011) (collecting cases).
Indeed, because guns are so pervasive and the risk of innocent possession is too high, the prosecution cannot simply argue that the very nature of a weapon covered by § 5861(d) places its possessor on notice of possible government regulation. Staples, 511 U.S. at 610. "Thus, to obtain a conviction, the Government [is] required to prove that [a defendant] knew of the features of his [weapon] that brought it within the scope of the Act." Id.
On the other hand, it does not take much in the way of circumstantial evidence for the government to prove "sub-18-inch" knowledge. See, e.g., United States v. Johnson, 978 F.Supp. 1305, 1310 (D. Neb. 1997) ("even a cursory examination of the weapon . . . proves that [the defendant] must have known that the barrel was shortened to an illegal length when he carried it into the bank and jammed it into the back of the terrified bank president's neck."), aff'd, 146 F.3d 547 (8th Cir. 1998); see also United States v. Moore, 97 F.3d 561, 564 (D.C.Cir. 1996) ("[t]he readily apparent barrel length and general appearance" of a sawed-off shotgun will usually be sufficient to establish that the defendant knew that its barrel length rendered the weapon illegal); United States v. Edwards, 90 F.3d 199, 205 (7th Cir. 1996) (fact that the shotgun's length is "obvious and apparent" can provide "a means of proving knowledge"); United States v. Jones, 222 F.3d 349, 353 n. 1 (7th Cir. 2000) (collecting cases).
That, in turn, figures into both the Strickland deficient performance and prejudice prongs that Brown must show. Was Kreinest Strickland-deficient in failing to illuminate the prosecution's failure to show Brown's shotgun-length knowledge? And would it have altered the trial's outcome if she did? The answer to both questions is no if the physical evidence — the shotgun's short length itself — was so patent that a jury would deem it obviously recognizable to the gun's possessor (hence, the worth of any closing argument on that point at best would have been dubious).
But the government cites no evidence showing that it was reasonably apparent to Brown that the shotgun was less than 18 inches. The Brown I opinion says this: "A reasonable jury could infer that both guns were loaded that morning, that Brown was present when the guns were loaded, and that Brown would have seen that the gun was short." Brown I, 374 F. App'x at 934 (emphasis added). That's not very specific. The trial transcript, however, shows that the jury heard from ATF agent Toby Taylor, a firearms expert. Doc. 144 at 48. After showing Taylor the Winchester Model 140, 12 gauge automatic shotgun, id. at 50, the prosecutor asked:
Id. at 51-52 (emphasis added).
Another agent testified that the shotgun was "14 inches." Doc. 143 at 111. Is four inches so obvious that it constitutes sufficient circumstantial evidence that "anyone" handling the gun in pretty much any circumstance would "know" that it was "sawed off?" Courts have held that it is.
In Ground Three Brown complains that Kreinest ineffectively advised him about the prosecution's plea offer that he ultimately rejected.
There is no dispute that Brown had been offered the chance to plead only to Count One (conspiracy to rob credit unions in violation of 18 U.S.C. § 371), which would have subjected him to 60 months' imprisonment. Doc. 175 at 12; doc. 176 at 6; see also doc. 125 (he received a 151-month sentence); doc. 145 at 7. The government says no prejudice can be shown, even if what Brown says about Kreinest's advice is true, because he most likely would have wound up serving the full 60 months had he taken the deal. Doc. 175 at 13. It cites the Presentence Investigation Report (PSI) in concluding that his plea acceptance would have fetched him at most a U.S.S.G. Sentencing Guideline total offense level of 26 (92-115 months), instead of the 29 that he received. PSI at 9, 17.
Hence, the government concludes, "it is extraordinarily unlikely that Brown would have received a sentence lower than 60 months from the district court." Doc. 175 at 14. The real benefit to Brown, the government insists, would have been to cap his sentence at the 60 month statutory maximum for a conspiracy (18 U.S.C. § 371) offense, and not subject him to a much higher range, which is what he wound up with by going to trial (the 151-month sentence, doc. 125).
Brown disagrees: "The government fails to acknowledge that movant was enhanced 9 levels and that it is highly unlikely movant would have received all of these enhancements had he accept [ed] the plea offered by the government. Without the enhancement movant's offense level would be (20). At this level in a category 4, and a three level reduction in offense level (17)[J movant would have been in a Guideline Range (37-46) months to serve. [That] is significantly under 5 [years] counsel advised movant would serve. Even with enhancements [Brown] would serve only 45 months in prison." Doc. 176 at 6-7 (emphasis added).
This claim fails outright. It turns on Brown's insistence that "it is highly unlikely movant would have received all of these enhancements had he accept[ed] the plea offered by the government." Of course, that's just wishful thinking. The PSI and the sentencing transcript reveals that (a) since age 17, Brown has amassed a considerable criminal record (PSI at 10-17), of which the sentencing judge took full notice, doc. 145 at 18-19; and (b) the sentencing judge specifically noted his culpability, in that he acted in a leadership capacity in the attempted robbery in question. Doc. 145 at 13-16. The government is correct; even assuming Strickland deficiency on Kreinest's plea advice — and that would be an unwarranted assumption because Brown does not otherwise claim that Kreinest failed to accurately convey the prosecution's plea offer — Brown can show no prejudice.
As explained in Brown II, Brown unsuccessfully moved for a new trial based on newly discovered evidence. "[T]he new evidence came in the form of a letter from the government dated approximately one year after Brown's trial, stating that [Morris,] one of the government's primary witnesses against Brown[,] had been indicted on insurance fraud charges stemming from activities that occurred both before and after the events leading to the case against Brown." 423 F. App'x at 890. The district judge's denial was affirmed on appeal "because the new evidence was cumulative and merely impeaching, and because Brown did not show that the jury would probably have reached a different result. Id. at 890-91. Brown also argued, for the first time on appeal, "that due process, as well as the concepts of justice and fair play, entitle him to a new trial." Id. at 890. But "in the absence of precedent resolving Brown's due process claim, his argument fail[ed] under plain error review." Id. at 891.
Brown renews his due process argument here. Doc. 173 at 13-16; see also doc. 172 at 8 (fair trial, due process argument). Yet, "once a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255." United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (quotes and cite omitted); cf. White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) ("Invoking the doctrine of the law of the case, the courts, including our court, forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal.").
The government does not raise the re-litigation defense. Instead, it insists that it should prevail on the merits — it timely disclosed this Brady material, it is at best cumulative, and Brown's contentions at best are conclusory. Doc. 175 at 14-18. Brown has not advanced this claim in conclusory terms, see doc. 173 at 13-18, but nevertheless rehashes what he litigated on appeal (hence, it is barred under Nyhuis,) and in any event does not rebut the government's showing that: (a) it timely disclosed the impeaching information; and (b) it is at best cumulative. Both of these findings were incorporated into the Brown II opinion, and this Court is not at liberty to reject them.
Accordingly, Brown's § 2255 motion should be
Brown also must show that counsel's defective performance resulted in prejudice; that is, he must demonstrate a "reasonable probability" that, but for counsel's unreasonable errors, the outcome would have been different. Strickland, 466 U.S. at 694. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. If it is clear Brown has not satisfied one prong of the Strickland test, the court need not inquire whether he has satisfied the other. Id. at 697; see also United States v. Crosby, 2012 WL 899263 at * 3-5 (D. Kan. Mar. 16, 2012) (applying Strickland standards to an IAC claim in a § 2113(a) case).
Doc. 144 at 124-25.
374 F. App'x. at 934 (emphasis added).
Doc. 144 at 126-27 (emphasis added).
