                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   November 20, 2015
                                   TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                       No. 14-3105
                                            (D.C. No. 2:12-CR-20066-KHV-JPO-37)
 VERNON BROWN,                                             (D. Kan.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, SEYMOUR, and MATHESON, Circuit Judges.



      Defendant-Appellant Vernon Brown was convicted of a conspiracy

involving various drug offenses. 1 21 U.S.C. § 846. He was sentenced to 120

months’ imprisonment and five years’ supervised release. 5 R. 1592. He now

appeals claiming the district court erred in: (1) admitting evidence concerning his

2010 state conviction for drug distribution; (2) permitting a witness to speak to


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
         Conspiracy to manufacture, possess with intent to distribute, and
distribute 280 grams or more of cocaine base and conspiracy to possess with
intent to distribute and distribute five kilograms or more of cocaine.
the credibility of a co-defendant witness; and (3) excluding photographs of an un-

indicted co-conspirator. Our jurisdiction arises under 28 U.S.C. § 1291 and we

affirm.



                                   Background

      The DEA conducted a long-term investigation, “Living Large 1,” that

focused on cocaine trafficking between Mexico and Kansas City, Kansas,

specifically the 2200 block of Russell Avenue. 3 R. 102, 146, 494. The

conspiracy uncovered spanned from January 2009 to May 31, 2012. 1 R 68. Co-

defendant Djuane Sykes supplied the block and sold both powder and crack

cocaine to several individuals, who would then resell it. 3 R. 319; 4 R. 2107–08.

At trial, the government provided ample evidence that one of these individuals

was Mr. Brown.

      Sykes testified that he and Mr. Brown grew up together and got “into the

drug game about the same time.” 4 R. at 1596. He knew that Mr. Brown used

marijuana and powder cocaine, but never knew him to smoke crack cocaine. Id.

at 1598. Nevertheless, Sykes testified that during the time of the conspiracy, Mr.

Brown would purchase from him “anywhere from an eight-ball to a half-ounce

hard [crack cocaine].” Id. at 1596. According to Sykes, Mr. Brown would break

these into $10 or $20 rocks that he would resell. Id. at 1599. Co-defendant Ralph

Mayo also testified that he and Mr. Brown would sell crack, obtained from Sykes,

                                       -2-
on Russell Avenue. 5 R. 1234–35. Upon his arrest, Mr. Brown admitted to

selling cocaine but claimed that he was not “the big man.” 4 R. 377. At trial, the

government tied Mr. Brown to a specific sale and purchase.

A.    November 6, 2010 Sale

      On November 6, 2010, a Kansas City, Kansas Police Department

confidential informant purchased about .4 grams of crack cocaine from Mr.

Brown. 3 R. 1706–22. In addition to testimony by two Kansas City, Kansas

police officers and video evidence, id. at 1706–22, 2270–82, the government also

relied upon a 2011 state conviction for this sale, for which Mr. Brown entered a

nolo contendere plea, id. at 1723–29. As proof, the government offered a 2010

Kansas Sentencing Guidelines Journal Entry of Judgment. Id. Mr. Brown

objected, arguing that the government had not effectively connected this sale to

the conspiracy. Id. The district court overruled the objection. Id.

B.    November 22, 2011 Purchase

      The government also introduced evidence that on November 22, 2011, Mr.

Brown purchased crack cocaine from Sykes. That day, while government

informant Kevin Cole, Jr. was in Sykes’s car, Mr. Brown approached and told

Sykes he wanted to purchase a half-ounce, but did not have the money at the time.

4 R. 1659. Sykes weighed out four grams of crack cocaine for him, even though

Mr. Brown only requested 3.5 grams (an eight-ball). Id. at 1660–61. When Cole

asked if it was “soft” or “hard,” Sykes responded that it was “hard,” meaning it

                                        -3-
was crack cocaine and not powder. Id. at 1343.



                                    Discussion

A.    Admission of State Conviction

      Mr. Brown first argues that admitting his state conviction for distribution of

cocaine violated Federal Rules of Evidence 410 and 803. As evidence of Mr.

Brown’s participation in the drug conspiracy, the government introduced evidence

that he pled guilty to the November 6, 2010 offense in state court (in actuality he

entered a nolo contendere plea) and submitted the journal entry reflecting this

state conviction. At trial, Mr. Brown objected that the government had not

sufficiently connected the November 6, 2010 sale to the conspiracy.

      On appeal, Mr. Brown argues for the application of a harmless error

analysis. Aplt. Br. 15; Aplt. Reply Br. 9. But because Mr. Brown did not object

at trial on the same grounds now raised on appeal, the correct standard of review

is for plain error. United States v. Ramirez, 348 F.3d 1175, 1181 (10th Cir.

2003). The government argues that Mr. Brown’s failure to assert plain error

review “marks the end of the road” for his argument. United States v. De

Vaughn, 694 F.3d 1141, 1159 (10th Cir. 2012) (quoting Richison v. Ernest Grp.,

Inc., 634 F.3d 1123, 1131 (10th Cir. 2011)). Though the government has the

better argument, it is apparent that Mr. Brown could not make the necessary

showing for plain error. To show plain error, Mr. Brown would have to

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demonstrate that admitting the evidence of his state conviction was: (1) error, (2)

that was plain, (3) that affected his substantial rights, and (4) that seriously

affected the fairness, integrity or public reputation of his judicial proceedings.

United States v. McBride, 633 F.3d 1229, 1233 (10th Cir. 2011) (quoting United

States v. McComb, 519 F.3d 1049, 1054 (10th Cir. 2007)). Defendant must show

all four of these elements and fails to do so.

      The Federal Rules of Evidence explicitly prohibit the use of a nolo

contendere plea. Fed. R. Evid. 410(a)(2); see also Fed. R. Evid. 803(22)(a) (nolo

contendere pleas excluded by rule against hearsay); United States v. Rosales-

Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (defining “plain” as “clear or

obvious under current law” (quoting United States v. McGehee, 672 F.3d 860,

876 (10th Cir. 2012))). Thus we clearly have an error that is plain. But Mr.

Brown must also show that the admission of the evidence affected his substantial

rights—that the error prejudiced him. To do so, he must demonstrate with

reasonable probability—“sufficient to undermine confidence in the

outcome”—that if the evidence had been correctly excluded, the outcome of the

proceeding would have differed. Rosales-Miranda, 755 F.3d at 1258 (quoting

United States v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008)). Mr. Brown cannot

meet this burden. The government introduced overwhelming evidence to

independently establish the November 6, 2010 sale and Mr. Brown’s involvement

in the conspiracy. Mr. Brown’s arguments simply do not undermine confidence

                                          -5-
in the outcome, given the remaining evidence pointing to his guilt.

B.    Officer Jones’s Testimony

      Mr. Brown next argues that the district court erred by permitting DEA Task

Force Officer (TFO) Eric Jones to testify concerning Djuane Sykes’s credibility.

At trial, the following exchange occurred between Mr. Brown’s counsel (Mr.

Kjorlie) and the TFO:

      Q.[Mr. Kjorlie] You heard Mr. Sykes testify during the -- in front of
      the jury, correct?
      A. Correct.
      Q. Are there any things there that he said that you felt might not be
      correct?
      MS. MOREHEAD [government’s attorney]: Judge, I’m going to
      object. He’s asking this witness to pass on the credibility of Mr.
      Sykes.
      MR. KJORLIE: Well, I’m saying is there anything that he said that
      does not correspond with his knowledge as the case investigator.
      MS. MOREHEAD: I’ll withdraw the objection, Judge. I think what
      he’s asking is if he told the truth or not. I’ll not object.
      MR. KJORLIE: I was sloppy. Sorry about that.
      A. Sir, I think Mr. Sykes, along with a couple of other individuals
      that will be testifying here are two of the most --
      MR. CORNWELL [co-defendant Kyle Stephen’s counsel]: I’m going
      to object to that, Judge, that does invade the province of the jury. So
      if he wants to talk about Sykes he doesn’t touch me, that’s fine but if
      he’s going to talk about somebody else that’s going to come up, I’m
      going on object.
      MS. MOREHEAD: I don’t know. Mr. Cornwell I -- guess can he
      object to defense? I guess. I don’t know. But he asked the question,
      Judge, that’s why I withdrew my objection.
      THE COURT: Would you rephrase the question? Are you only
      asking about Sykes?
      MR. KJORLIE: Yeah.
      Q. (By Mr. Kjorlie) I’m just asking about Mr. Sykes.
      THE COURT: And whether he has an opinion that Mr. Sykes was
      making statements that were inconsistent with what he had found in

                                        -6-
      his investigation?
      MR. KJORLIE: Correct.
      THE COURT: Okay. You can answer.
      A. No, sir. I think Mr. Sykes was exceptionally credible.
      Q. (By Mr. Kjorlie) Now, this area of credibility, I guess we’re not
      going to make that decision, the jury’s going to make it, correct?
      A. (No response.)
      Q. Right?
      A. Ultimately it is up to them, yes, sir.

4 R. 2176–78. Mr. Brown now objects to the TFOs testimony, arguing that the

district court improperly allowed him to vouch for Sykes, preventing the jury

from making its own credibility determinations.

      The invited-error doctrine precludes this objection. 2 Here, counsel elicited

the testimony from the TFO over objection from the other counsel, and also

clarified (during the questioning) that credibility was the jury’s province. The

invited error doctrine prevents “a party from arguing that the district court erred

in adopting a proposition that the party had urged the district court to adopt.”

United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005). Therefore, even

assuming arguendo that permitting the TFO to speak to Sykes’s credibility was

error, Mr. Brown, as the party who induced the alleged error, cannot seek to set it

aside on appeal. See United States v. Burson, 952 F.2d 1196, 1203 (10th Cir.

1991). As a strategic decision, counsel asked a question and received an answer.


      2
         The government argues in the alternative that Mr. Brown’s argument on
this claim also fails under plain error review. Aplee. Br. 28–29. Because the
issue is easily resolved under the government’s first theory of invited error, we
need not address plain error.

                                        -7-
Mr. Brown cannot now object because the answer was different than expected or

desired. Whatever counsel’s strategy, we will not consider the error on appeal.

      Mr. Brown’s reliance on our decisions in United States v. Hill, 749 F.3d

1250 (10th Cir. 2014), and United States v. Charley, 189 F.3d 1251 (10th Cir.

1999), is misplaced. In both Hill and Charley, the government elicited the

testimony on credibility and the defendant objected. Hill, 749 F.3d at 1256–57;

Charley, 189 F.3d at 1261. In contrast, Mr. Brown, through counsel, both elicited

the testimony and now objects to it.

C.    Exclusion of Photos

      Finally, Mr. Brown argues that the district court erred in refusing to admit

six photographs of an un-indicted coconspirator, Luis Anselmo Ortega-Flores,

drinking and surrounded by women. We review a district court’s decision

regarding the admissibility of evidence for abuse of discretion. Hinds v. Gen.

Motors Corp., 988 F.2d 1039, 1047 (10th Cir. 1993) (citing Durtsche v. Am.

Colloid Co., 958 F.2d 1007, 1011 (10th Cir. 1992)). At trial, the government

objected to the photos as irrelevant. Counsel argued that the photos provided a

contrast between his client’s lifestyle and the lavish lifestyle of Ortega-Flores.

According to Mr. Brown, these photos tended to show that Mr. Brown could not

be a member of the “Living Large” conspiracy because he was not “living

large”—he did not benefit from the conspiracy’s rewards. The district court

excluded the evidence as irrelevant to Mr. Brown’s membership in the conspiracy,

                                         -8-
noting that the government had not put Mr. Brown’s lifestyle in issue. We find

no abuse of discretion. The evidence was clearly tangential.

      AFFIRMED.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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