                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0317n.06
                              Filed: May 5, 2006

                                            No. 05-3430

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiffs-Appellee,                        )
                                                   )    ON APPEAL FROM THE UNITED
v.                                                 )    STATES DISTRICT COURT FOR THE
                                                   )    SOUTHERN DISTRICT OF OHIO
BRYAN K. BROWN,                                    )
                                                   )    OPINION
       Defendant-Appellant.                        )
                                                   )



BEFORE:        BOGGS and SUTTON, Circuit Judges, and SCHWARZER,* Senior District
               Judge

       WILLIAM W SCHWARZER, Senior District Judge. Defendant-Appellant Bryan K.

Brown appeals his conviction, following a jury trial, for unlawful possession of a firearm by a felon.

18 U.S.C. §§ 922(g)(1), 924(a)(2). We affirm, finding Brown’s arguments to lack merit. Because

the parties are familiar with the facts, we need not recite them.

       In reviewing the denial of a motion to suppress, we must “consider the evidence in the light

most favorable to the government” and accept the factual findings supporting the district court’s

decision “unless they are clearly erroneous.” United States v. Harris, 255 F.3d 288, 291-92 (6th Cir.

2001). Brown argues that the district court erred in denying his suppression motion because it did



       *
         The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
No. 05-3430
United States of America v. Brown

not determine and preserve in the record the actual words used by Officer Sala to Mirandize Brown.

Uncertainty as to the form of Sala’s Miranda warning, however, does not render clearly erroneous

the court’s decision to credit Sala’s testimony that Brown was notified of and understood his

Miranda rights. The Supreme Court has held that the sufficiency of a Miranda warning depends

upon the warning’s substance, rather than the specific language used. See Missouri v. Seibert, 542

U.S. 600, 611 (2004).

       Evidentiary rulings are reviewed for abuse of discretion. United States v. Carney, 387 F.3d

436, 452 (6th Cir. 2004). However, since Brown did not merely fail to object at trial to questioning

and testimony regarding his criminal history, but expressly consented to it, he has waived his right

to assert error on appeal. United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990) (“An attorney

cannot agree in open court with a judge’s proposed course of conduct and then charge the court with

error in following that course.”); see also United States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993).

Even if Brown had not consented to the admission of criminal history evidence, his evidentiary

challenges lack merit.1

       We review de novo allegations of prosecutorial misconduct. United States v. Tarwater, 308

F.3d 494, 510-11 (6th Cir. 2002). Although Brown alleges three instances of misconduct in the


       1
          First, Brown argues that Sala’s testimony contained inadmissible hearsay. The Sixth
Circuit, however, treats such explanatory testimony as nonhearsay. See United States v. Gholston,
10 F.3d 384, 388 (6th Cir. 1993) (“The detectives were simply asked to explain the background of
the case and the reasons for their various actions. Accordingly, we detect no hearsay problem.”).
Second, Brown argues that the court erred in allowing Sala to read his felony-arrest report on
redirect examination. Sala’s reading, however, was permissible as rehabilitation of his testimony
following efforts to impeach his credibility. See United States v. Denton, 246 F.3d 784, 789 (6th
Cir. 2001).

                                                 -2-
No. 05-3430
United States of America v. Brown
government’s closing arguments, he fails to demonstrate the impropriety of the government’s

statements. See United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005). The government had

properly introduced into evidence the matters it summarized during closing argument, United

States v. Drake, 885 F.2d 323, 324 (6th Cir. 1989), and did not violate Brown’s Fifth Amendment

rights by asking the jury to consider hypothetically whether his postarrest statements were those of

an innocent party, United States v. Green, 305 F.3d 422, 430 (6th Cir. 2002).

        Brown argues that the court lacked authority to ask a jury that had returned a verdict to

answer additional, sentence-related interrogatories. Any error in the request was harmless since the

jury had already convicted Brown. Cf. United States v. Thomas, 167 F.3d 299, 305 (6th Cir. 1999)

(finding no prejudice from postverdict delay in resentencing).

        Although not raised as an independent issue, Brown argues at numerous points in his brief

that his trial counsel provided him with ineffective assistance. The Sixth Circuit, however, generally

does not accept ineffective assistance claims on direct review. United States v. Frazier, 423 F.3d

526, 539 (6th Cir. 2005). An insufficient record exists in the present case since only a trial transcript

has been provided. See United States v. Goodlett, 3 F.3d 976, 980 (6th Cir. 1993); see also

Strickland v. Washington, 466 U.S. 668, 681 (1984).

        For the reasons stated, we AFFIRM the judgment.




                                                  -3-
