                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-6-2002

USA v. Brown
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2150




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                                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No: 01-2150
                                    _______________

                            UNITED STATES OF AMERICA


                                              v.

                                   ANDREW BROWN,
                                 a/k/a TYREE BRYANT,


                                         Andrew Brown,
                                             Appellant


                        Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                         (D.C. Criminal Action No. 99-cr-00730)
                       District Judge: Honorable William H. Yohn, Jr.


                        Submitted Under Third Circuit LAR 34.1(a)
                                   on June 11, 2002

                               Before: SLOVITER, ROTH
                               and MCKEE, Circuit Judges

                            (Opinion filed: November 6, 2002)




                                      OPINION


ROTH, Circuit Judge:
         Andrew Brown, a/k/a Tyree Bryant, appeals his conviction in the United States

District Court for the Eastern District of Pennsylvania of one count of possession of a

firearm by a convicted felon in violation of Title 18, United States Code §§ 922(g)(1) and

924(e). Brown was sentenced to 270 months in prison with a mandatory term of 5 years

supervised release. In addition, he was fined $2,000. Brown raises three issues on his

appeal: (1) The commerce clause element of § 922(g) was not satisfied in the absence of

evidence that the gun had a current effect on commerce, (2) the sentence was excessive

without the statutory authority to supersede the prescribed maximum, and (3) he was

deprived of his right to a fair trial.

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 to review the district

court’s judgment of conviction. Because this appeal involves review of legal questions, we

exercise plenary review. United States v. Stewart, 185 F. 3d 112, 123 n.4 (3d Cir.), cert.

denied, 528 U.S. 1063 (1999). Furthermore, because Brown did not challenge government

counsel’s summation in the district court, we review this contention for plain error only.

Fed. R. Crim. P. 52(b); United States v. Brown, 254 F. 3d 454, 458 (3d Cir. 2001). For

the following reasons, we will affirm the judgment of the district court.

         The facts of this case are familiar to the parties so we will not repeat them.

         First, Brown contends that Section 922(g) was not satisfied because there was no

evidence that the gun had a current effect on commerce. This is an incorrect assumption of

the law. It is not necessary that the weapon have a current effect on interstate commerce if

it had such effect in the past. In United States v. Singletary, 268 F.3d 196, 200 (3d Cir.

                                                      2
2001), we found that, “the transport of the weapon in interstate commerce, however remote

in the distant past, gives its present intrastate possession a sufficient nexus to interstate

commerce to fall within the ambit of the statute.” See also United States v. Coward, 296

F.3d 176, 183-184 (3d Cir. 2002) (reaffirming the constitutionality of Section 922(g) in

response to similar challenge). Brown stipulated at trial that the firearm was manufactured

outside of Pennsylvania. Therefore, at one point, its effect on interstate commerce was

sufficient to satisfy the requirements of Section 922(g).

        Second, Brown claims that, in sentencing him, the District Court incorrectly applied

Title 18, United States Code, § 924(e), the Armed Career Criminal Act (ACCA). This

conclusion is also incorrect. Brown claims that the government “by-passed” § 924(a),

which set out a maximum penalty of ten years imprisonment, for § 924(e), which mandates

a minimum penalty of fifteen years. Brown was subject to the enhanced penalties of §

924(e) based upon his prior criminal record. Section 924(e) provides for a fifteen year

statutory minimum for those who violate § 922(g) and have three prior convictions for

violent felonies or controlled substances. Therefore, the appropriate penalty was imposed

by the District Court.

        Brown also raises an Apprendi challenge to his sentence. Apprendi v. New Jersey,

530 U.S. 466 (2000). Apprendi, however, is not applicable to an enhancement imposed for

a prior conviction. The Court, in Apprendi, specifically excluded the fact of a prior

conviction from those elements which must be submitted to a jury. Id. at 490. Here,

Brown’s prior convictions enhanced his punishment so that his sentence fell under the 15

                                                       3
year provision of § 924(e) rather than the 10 year provision of § 924(a) of the ACCA. In a

similar case, United States v. Mack, 229 F.3d 226 (3d Cir. 2000), we found that a

conviction under 922(g)(1) was subject to the enhanced penalty under § 924(e), based upon

defendant’s prior convictions, so that the Apprendi challenge failed. Id. at 235 n.12.

Although § 924(e) prescribes no statutory maximum penalty, the Supreme Court has

construed it to authorize a life term. See Custis v. United States, 511 U.S. 485 (1994).

Therefore, Brown’s sentence of 270 months falls within the maximum of life

imprisonment and survives the Apprendi challenge.

        Brown next argues that he was denied the right to a fair trial. First, he contends that

testimony revealing his aliases tainted the jury. When asked how he was able to identify the

defendant as Andrew Brown, after giving the alias “Tyree Brown,” Detective Brooks

testified that he found the name “to be listed as one of Andrew Brown’s aliases.” Brown

argues that the language referring to Tyree Brown as one of his aliases indicates to the jury

the presence of another prior conviction. This argument is without merit. This testimonial

statement does not indicate Brown had more than one prior conviction. The answer by

Detective Brooks was an evidentiary statement as to how he discovered Brown’s true

identity and was essential to identifying how the investigation was completed. “If the

government intends to introduce evidence of an alias and the use of that alias is necessary

to identify the defendant in connection with the acts charged in the indictment, the

inclusion of the alias is both relevant and permissible . . ..” United States v. Clark, 541

F.2d 1016, 1018 (4th Cir. 1976) (citation omitted). See also United States v. Wilkerson,

                                                     4
456 F.2d 57, 59 (6th Cir. 1972) (finding “[o]nly when proof of an alias is relevant to

identifying the defendant should a court allow its inclusion in the indictment and its

subsequent introduction at trial.”); United States v. Burton, 525 F.2d 17, 19 (2d Cir.

1975); United States v. Miller, 381 F.2d 529, 536 (2d Cir. 1967); United States v. Kalish,

690 F.2d 1144, 1155 (5th Cir. 1982) (upholding testimony of defendant’s alias where it

was used to conceal identity from officers). We conclude that this statement did not deny

Brown the right to a fair trial.

        Second, Brown contends that the government’s summation constituted prosecutorial

misconduct. Brown believes that the closing argument was improper due to government

counsel’s suggestion that, to find the defendant not guilty, the jury would have to believe

that one of the government’s witnesses was lying. In addition, it is argued that counsel for

the government injected personal opinion regarding the credibility of witnesses. These

arguments are incorrect. In order to find prosecutorial misconduct under a plain error

standard, the record must reveal an “egregious error or a manifest miscarriage of justice.”

United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996). Government counsel’s

statements fall short of this standard. Counsel’s statements did not improperly inject

personal opinion or facts not in evidence. See United States v. Saada, 212 F.3d 210, 225

(3d Cir. 2000) (finding two criteria for improper vouching: “(1) the prosecutor must

assure the jury that testimony of a government witness is credible; (2)this assurance must

be based on either the prosecutor’s personal knowledge or other information not contained

in the record”). The statements made in summation were proper and Brown’s right to a fair

                                                      5
trial was not infringed.

        For the foregoing reasons, we will affirm the judgment of the District Court.




                                                    6
TO THE CLERK:

     Please file the foregoing Opinion.




                                          By the Court,




                                                    S/S Jane R. Roth
                                                      Circuit Judge




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