                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4275


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JEREMY TODD BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:09-cr-00014-REM-JSK-1)


Submitted:   March 31, 2011                 Decided:   April 13, 2011


Before AGEE, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


E. Ryan Kennedy, ROBINSON & MCELWEE, PLLC, Clarksburg, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Stephen D. Warner, Assistant United States
Attorney, Elkins, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Jeremy     Todd        Brown     was       convicted       by    a       jury    of

conspiring during the fall of 2007 to possess with intent to

distribute and manufacture more than 50 grams of methamphetamine

(Count One); aiding and abetting the possession of materials for

the manufacture of methamphetamine in November 2007 (Count Two);

and possession in November 2007 of pseudoephedrine knowing that

it would be used to manufacture methamphetamine (Count Three). 1

Brown      appeals      his   convictions            on   the    ground    that      a    defense

witness         was   called      to     testify          out   of      order,    before        the

government finished presenting its case.                          He also challenges his

sentence,        arguing      that     the     district         court    clearly     erred       in

finding that an obstruction of justice adjustment applied.                                      U.S.

Sentencing Guidelines Manual § 3C1.1 (2009).                             Last, he contends

that the $100 special assessment on each count of conviction was

an excessive fine that violated the Eighth Amendment and the

Origination Clause of the Constitution.                         We affirm.

                At    Brown’s   trial,         the    government        presented        evidence

that       he     was    involved         in     a        conspiracy       to     manufacture

methamphetamine at a trailer home on his mother’s property on

Abbot Road in Upshur County, West Virginia, and other places.

       1
       Brown was acquitted on Count Four, which charged that he
aided   and  abetted   the  possession   of  materials for  the
manufacture of methamphetamine in February 2009.



                                                 2
In the early hours of November 21, 2007, a search warrant was

executed      at   the     Abbot      Road      trailer.         A    functioning

methamphetamine lab was found in the trailer, which appeared to

have been abandoned during the clean-up after a methamphetamine

cook.       Chris Perry was one of many government witnesses.                     He

testified that Brown or someone else cooked methamphetamine at

the trailer at least once a week.             He said he was at the trailer

on November 21, 2007, with a number of people, including Brown,

who cooked methamphetamine that night and was cleaning up when

the   law    enforcement    authorities       arrived.      Perry    said   he   and

Brown and the others left the property by the back way, going

over the hill.

              Another    government    witness,     Melissa      Frey,    testified

that she lived with Brown’s girlfriend, Jency Hinkle, during the

time of the charged conspiracy and that for three or four years

Brown regularly supplied Hinkle with methamphetamine at their

apartment.      She said that Brown usually brought “a wad about as

big as a golfball[.]”         Frey also testified that Brown, who was

on pre-trial release at the time, called her the week before his

trial began and suggested to her that “maybe it wasn’t a ball of

crank”      (methamphetamine)      that   she    had     seen,   “maybe     it   was

tissues.”      At the end of the first day of trial, the district

court revoked Brown’s bond, finding that his contact with Frey,

a potential witness, violated the conditions of his release.

                                          3
             The    government’s             last        witnesses,      who    were       all   in

custody,     arrived       late        at        the     courthouse.          Anticipating         a

possible    delay     in     the   trial           proceedings,         the    district        court

asked    defense     counsel,       Brian          Kornbrath,        whether        he   would    be

willing to call some of his witnesses out of order.                                      Kornbrath

initially said he would prefer not to do that.                                 However, after

the     government     had       put        on     its     only   available          witness,      a

discussion was held off the record between the court and the

attorneys.     The court then explained the situation to the jurors

and told them –

      So rather than have you sit here with dead time . . .
      the defense, Mr. Kornbrath, is going to call one of
      his witnesses out of order.   But this witness he is
      calling is part of his case which would normally come
      after the Government’s case is completed.     But in
      order to move things along, he’s going to call this
      witness out of order.

            Brown’s sister, Sheila Minix, then testified that no

one was living in the trailer at the time the search warrant was

executed, and that a number of people had stayed there on a

temporary basis.           After her testimony, the government presented

its remaining witnesses.

            Following        Brown’s             conviction,      the    probation         officer

recommended    that        his     contact             with   Frey    was      an    attempt      to

influence a witness that warranted a two-level adjustment for

obstruction of justice.                Brown objected to the adjustment.                          At

sentencing     the     court       found           that,      although        Brown      had     not

                                                   4
explicitly asked Frey to change her testimony, he had made an

implicit      request    that    she     do       so,    and        that    the       adjustment

applied.      The court sentenced Brown to a term of 360 months on

Count One, and concurrent sentences of ten years on Count Two

and twenty years on Count Three.                  The court ordered Brown to pay

a   special    assessment       of    $100    for       each    count.           No    fine   was

imposed, but Brown was ordered to pay restitution in the amount

of $6425.

              On appeal, Brown contests his conviction on the ground

that his defense witness, Sheila Minix, was called during the

government’s case in chief.                  Brown made no objection at the

time.       Therefore,    his    claim       of    error       is    reviewed         for   plain

error. 2     Under the plain error standard of review, United States

v. Olano, 507 U.S. 725, 732-37 (1993), a defendant must show

that (1) error occurred; (2) the error was plain; and (3) the

error affected his substantial rights.                         Id. at 732.            Even when

these      conditions    are    satisfied,         this       Court       may    exercise     its

discretion     to    notice     the   error       only     if       the    error      Aseriously

affect[s]      the   fairness,        integrity          or     public          reputation     of

judicial proceedings.@           Id. (internal quotation marks omitted);


      2
       Brown asserts that defense counsel’s earlier statement
that he preferred that defense witnesses follow the government’s
case was enough to preserve the issue. However, counsel’s later
failure to object indicates a change of mind.



                                              5
United     States   v.    Massenburg,     564   F.3d       337,    342-46    (4th    Cir.

2009) (reviewing unpreserved Fed. R. Crim. P. 11 error).

               It is not clear from the record whether the district

court     or    defense     counsel      initiated         the     unrecorded       bench

conference that was held just before Minix testified. 3                            In any

case, Brown maintains that having his witness testify out of

order     “erroneously      indicated    to   the   jury     that     [he]    had    some

burden to produce evidence or prove his innocence.”                           However,

the     district    court     has     discretion      to    “exercise        reasonable

control over the mode and order of interrogating witnesses and

presenting evidence so as to . . . make the interrogation and

presentation effective for the ascertainment of the truth . . .

and   avoid     needless     consumption      of    time[.]”          Fed.    R.    Evid.

611(a); see also United States v. Blake, 571 F.3d 331, 349 (4th

Cir. 2009) (Rule 611 gives trial court broad discretion and “a

judge’s ruling will not be the basis for reversal of a criminal

conviction       unless      a      defendant’s     substantial          rights       are

affected.”)      (internal       quotation    marks    and        citation   omitted),

cert. denied, 130 S. Ct. 1104 (2010).                       Moreover, the Seventh

Circuit has held that “changing the order in which evidence is




      3
       The government states in its brief that defense counsel
asked to approach the bench. Brown neither agrees with nor
disputes this statement.



                                          6
presented     does      not    change      the     burden       of    proof.”        Mays     v.

Springborn, 575 F.3d 643, 649 (7th Cir. 2009).

            In    his    reply       brief,      Brown    argues       that   Rule    611    is

limited by Rule 29 of the Federal Rules of Criminal Procedure,

which presumes that the government will present its case first,

after which the defendant may make a motion for acquittal and

then present evidence if the motion is denied.                               Brown presents

no authority for his position that Rule 29 limits the trial

court’s discretion under Rule 611.                    We conclude that he has not

shown plain error on the part of the district court.

            Brown        also        challenges           the        two-level       sentence

adjustment he received for obstruction of justice.                               We review

for   clear      error     a       district       court’s       determination         that     a

defendant obstructed justice.                 United States v. Hughes, 401 F.3d

540, 560 (4th Cir. 2005).                    Here, we are satisfied that the

district    court    did       not    clearly       err    in    finding      that    Brown’s

suggestion to Frey that she might have seen him bring tissues

rather than methamphetamine to her apartment was an implicit

request    that   she     so       testify    and    an    attempt      to    obstruct       his

prosecution.

            Although Brown made no objection to the $100 special

assessment    imposed         by     the   sentencing       court       under    18    U.S.C.

§ 3013 (2006) for each count of conviction, in this appeal he

raises two challenges to the special assessment.                              Because Brown

                                              7
failed to raise these issues in the district court, they are

reviewed for plain error.

            First, Brown claims that the special assessment is an

excessive    fine      which     violates      the    Eighth     Amendment.        The

government notes that there was at one time a split in the

circuits as to whether the special assessment required under

§ 3013 was punitive, and thus actually a fine.                        The question

arose primarily in cases involving assimilated crimes. However,

§ 3013 was amended in 1987 to apply to assimilated crimes.                         See

18 U.S.C. § 3013(d).            Brown lacks current authority to support

his position that the special assessment is a fine.                        Moreover,

even if the $100 special assessment on each count were treated

as a fine, it would not be plainly excessive.

            Last,      Brown    maintains      that    United    States    v.   Munoz-

Flores, 495 U.S. 385, 398-99 (1990), is no longer controlling

law.    In Munoz-Flores, the Supreme Court held that the special

assessment       did   not      violate    the       Constitution’s       Origination

Clause, even though it was enacted in a bill that originated in

the Senate, because the amount of revenue it raised that went

into the general treasury (rather than the Crime Victims’ Fund)

was    incidental.      Brown       contends   that     the     special   assessment

currently generates enough revenue for the general treasury that

the    revenue     cannot      be    deemed    incidental.          He    relies    on

information contained in a “Fact Sheet” produced by the U.S.

                                           8
Department of Justice, Office for Victims of Crimes, which he

has submitted as an attachment to his opening brief.                       However,

none of the information was presented to the district court.                     We

conclude that the district court did not plainly err in imposing

the special assessment.

              We   therefore    affirm       the   sentence    imposed     by    the

district    court.     We    dispense    with      oral   argument    because    the

facts   and    legal   contentions      are    adequately     presented     in   the

materials     before   the     court   and     argument    would     not   aid   the

decisional process.

                                                                           AFFIRMED




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