                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2001

United States v. Brown
Precedential or Non-Precedential:

Docket 00-1679




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Filed May 22, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1679

THE UNITED STATES OF AMERICA,

v.

MELVINISHA BROWN,
       Appellant

APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 99-cr-00508-4)
District Judge: The Honorable Eduardo C. Robr eno

ARGUED JANUARY 23, 2001

BEFORE: NYGAARD, ALITO, and ROSENN,
Circuit Judges.

(Filed: May 22, 2001)

       Lynanne B. Wescott, Esq.
        (Argued)
       Saul Ewing, Esq.
       500 Market Street
       Centre Square West, 38th Floor
       Philadelphia, PA 19102

        Counsel for Appellant
       Walter S. Batty, Jr., Esq.
       Carol M. Sweeney, Esq. (Argued)
       Suite 1250
       Office of United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

        Counsel for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

On January 4, 2000, Appellant, Melvinisha Br own,
pleaded guilty to an indictment charging her with one count
of conspiracy to make false statements to a federally
licensed firearms dealer, in violation of 18 U.S.C. S 373
(count one of the indictment), and one count of making
false statements to a federally licensed fir earms dealer, in
violation of 18 U.S.C. S 924(a)(1)(A) (count six of the
indictment). The United States District Court for the
Eastern District of Pennsylvania sentenced her to five years
probation, including twelve months of home confinement.
Brown appeals, arguing that: (1) the court erroneously
rejected her motion to withdraw her guilty plea; and (2) the
court erroneously refused to grant a sentence reduction
pursuant to U.S.S.G. S 3B1.2 for her mitigating role in the
offense. For the reasons that follow, we will affirm.

I. FACTS AND PROCEDURE

Brown and five co-conspirators were char ged with
purchasing a total of nine firear ms in violation of federal
statutes. Brown herself allegedly purchased two semi-
automatic pistols, for which she pleaded guilty. One week
before sentencing, however, she filed a motion to withdraw
her guilty plea. She contended that her plea had not been
knowing and voluntary because it had been based upon
"inaccurate representations of available evidence." She also
asserted that she was "legally innocent" because the
government could not prove that she was guilty beyond a
reasonable doubt.

                               2
In Brown's Supplemental Memorandum of Law in
support of her motion to withdraw her guilty plea, she
alleged that the government had failed to disclose
information that she characterized as Brady or Giglio
evidence. Specifically, Brown argued that the government's
plea agreement with her co-defendant, Curtis Jordan, in
which the government agreed to withdraw count six of the
indictment, constituted exculpatory evidence that it was
compelled to disclose pursuant to Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194 (1963), and Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763 (1972). According to Brown, the
government agreed to drop count six against Jordan
because he had an alibi defense that exonerated him on
that count. She claims that her plea was motivated by the
belief that Jordan's testimony would be used against her at
trial. Had she been aware of the undisclosed information,
she may not have pleaded guilty.

The District Court conducted a hearing to consider
Brown's motion to withdraw her plea. Special AUSA
Sweeney testified that she did not recall Jor dan's attorney
ever discussing whether Jordan had an alibi defense. J.A.
at 208. She stated, "I recall not hearing the word alibi until
yesterday [4/19/00] when [defense counsel's] pleading
called it to my attention." Id. at 209. Instead, according to
Sweeney, the government decided to drop count six against
Jordan because Brown had chosen not to testify against
him. She testified that, "I had never disclosed to Ms. Brown
or her lawyer an intention to use Mr. Jor dan as a witness,
so the fact that he was not a witness was not a change in
circumstance." Id. at 209-10.

The District Court denied Brown's motion to withdraw
her guilty plea. It held that Brown failed to make a
"colorable claim of innocence." Moreover , the court held
that the government's failure to disclose its decision not to
charge Jordan with count six of the indictment did not
constitute a Brady or Giglio violation. The court reasoned
that, given the credible testimony of the pr osecutor and the
absence of any contrary evidence from the defense, Brown's
"Jordan alibi theory" was "sheer speculation." Relying upon
Smith v. Holtz, 210 F.3d 186 (3d Cir . 2000), the court held
that even if Brady was implicated, no violation had

                               3
occurred because Brown failed to demonstrate "a
probability sufficient to undermine confidence in the
outcome of this case." Thus, Brown had failed to
demonstrate a fair and just reason for withdrawal of her
guilty plea. She filed a motion for reconsideration, which
the District Court rejected after she failed to supplement
the record.

At the subsequent sentencing hearing, Brownfiled a
motion for a sentencing reduction pursuant toS 3B1.2 of
the Guidelines. She requested a downwar d adjustment of
four levels for her minimal participation in the of fense or, at
the very least, a two level downward adjustment for her
minor participation. The District Court denied the
requested adjustment, finding that Br own knew that others
were involved in a criminal enterprise, knew of its scope,
and was important to its success. As such, the court
assigned Brown a total offense level of ten and a criminal
history category of I. The court sentenced her tofive years
probation, with the first twelve months to be served in
home confinement subject to electronic monitoring

II. DISCUSSION

A. Withdrawal of Plea

Brown first contends that she presented a fair and just
reason for the withdrawal of her guilty plea. She asserts
three primary arguments: (1) her plea was neither knowing
nor voluntary because the guilty plea colloquy was
misleading and deceptive; (2) the government failed to
disclose exculpatory Brady information before the entry of
her plea; and (3) she is legally innocent and can pr evail at
trial. We review the District Court's denial of Brown's
motion for withdrawal of her guilty plea for an abuse of
discretion. See United States v. Harris, 44 F.3d 1206, 1210
(3d Cir. 1995). However, to the extent that Brown contends
that the government failed to disclose Brady information,
we review the court's legal conclusions de novo and its
factual findings for clear error. See United States v. Ramos,
27 F.3d 65, 67 (3d Cir. 1994).

Once accepted, a guilty plea may not automatically be
withdrawn at the defendant's whim. See United States v.

                                4
Martinez, 785 F.2d 111 (3d Cir. 1986). Rather, a defendant
must have a fair and just reason for withdrawing a plea of
guilty. See FED. R. CRIM. P. 32(e). We look to three factors to
evaluate a motion to withdraw: (1) whether the defendant
asserts her innocence; (2) whether the gover nment would
be prejudiced by the withdrawal; and (3) the strength of the
defendant's reason to withdraw the plea. United States v.
Huff, 873 F.2d 709, 711 (3d Cir . 1989). "A shift in defense
tactics, a change of mind, or the fear of punishment are not
adequate reasons to impose on the gover nment the
expense, difficulty, and risk of trying a defendant who has
already acknowledged his guilt by pleading guilty." United
States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992),
superseded by statute on other grounds as stated in, United
States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999).

We conclude that Brown has failed to pr esent a fair and
just reason for withdrawing her guilty plea. First, her
contention that the government misrepr esented its evidence
and secretly changed its theory of the case during the plea
colloquy, thus rendering her plea involuntary and
uninformed, is without merit. Brown ar gues that the
colloquy was misleading and defective because the Change
of Plea Memorandum read into the recor d by the
government differed slightly fr om a previously docketed
version of the document. A review of the r ecord, however,
reveals no substantive alterations. In both, the factual basis
for criminal charges was based upon Br own's confession.
And, as the District Court found, neither summary of facts
contains any reference to the gover nment's intention to
have Jordan testify.

The only discernible difference between the two
summaries is that the version read into the r ecord specifies
that Brown herself was the source of the information. This
does not reflect a change in the gover nment's theory of the
case. The government had always planned to use Brown's
confession, which is partially corroborated both by the ATF
form that she signed when purchasing thefirearms and the
common scheme of the other straw purchasers.

In addition, there was nothing covert or surr eptitious
about the changes to the Plea Memorandum. The
government announced the factual basis for Br own's

                               5
offense in open court in the presence of Brown and her
attorney. The District Court then asked Br own if the
summary was accurate and correct. Brown r eplied that it
was. Accordingly, we do not believe that the changes made
during the plea colloquy render Brown's plea of guilty
unknowing and involuntary, nor do they provide a fair and
just reason for the withdrawal of her plea.

Brown's second argument in support of her request to
withdraw her guilty plea fails because the gover nment's
alleged failure to disclose its decision not to charge Jordan
with count six of the indictment is neither a Brady nor a
Giglio violation.1 In Brady v. Maryland, 373 U.S. at 87, 83
S.Ct. at 1196-97, the Supreme Court held that"the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution." Evidence is favorable to an accused under
Brady " `if it would tend to exculpate him or reduce the
penalty . . . .' " Id. at 87-88, 83 S.Ct. at 1196-97. The
prosecution must also disclose evidence r elevant to the
credibility of crucial prosecution witnesses. See Giglio, 405
U.S. at 153, 92 S.Ct. at 766.

Here, Brown has failed to demonstrate that the
prosecution's dismissal of count six against Jordan
qualifies under Brady or Giglio. Brown maintains that she
entered her plea of guilty believing that Jor dan's testimony
would be used against her at trial. She contends that the
prosecution dismissed count six because Jor dan had an
alibi defense. Because her conspiracy charges are "factually
linked" to Jordan, she argues that the dismissal
_________________________________________________________________

1. We assume for the sake of argument, but do not hold, that Brady may
require the government to tur n over exculpatory information prior to
entry of a guilty plea. Compare, e.g., United States v. Avellino, 136 F.3d
249, 255 (2d Cir. 1998) (Brady applies in guilty plea context), and
Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (same),
with Matthew v. Johnson, 201 F.3d 353, 360-62 (5th Cir. 2000)
(suggesting that Brady may not apply). W e find it unnecessary to decide
this question here because it is apparent that Brown would not be
entitled to relief even if Brady is applicable in this context.

                               6
undermines the charges against her . Her argument fails for
several reasons.

First, Brown has presented no evidence that the
government intended to use Jordan as a witness. As noted
above, neither the written, docketed Change of Plea
Memorandum nor the version read into the r ecord
contained any indication that Jordan was to testify.
Additionally, Special AUSA Sweeney stated under oath that
she never intended to use Jordan as a witness against
Brown and had never implied anything to the contrary. She
stated:

       My comments are basically that counsel keeps
       asserting that she was told, it was her impr ession . . .
       that Curtis Jordan was going to testify against this
       defendant, there is nothing anywhere the Government
       wrote, filed or said to lead a reasonable person to so
       conclude.

       . . . The Government had no notice of anything that
       it should have or even could have turned over to Ms.
       Wescott in terms of Mr. Jor dan, I have never spoken to
       Mr. Jordan, we never proffer ed Mr. Jordan, he was
       never questioned about this defendant. So counsel's
       understanding or impression, I submit, is not
       something for which the Government is r esponsible.

J.A. at 195-196; see also id. at 204 ("There was never an
arrangement or even an understanding made that Mr .
Jordan would testify against anyone.").

Brown failed to refute this testimony during her hearing.
For example, she failed to allege any specific conversations
in which the government informed her that Jordan would
testify against her. Nor did she produce any written
documentation supporting her position. Instead, she merely
alleged a general impression or belief that the government
would use Jordan in its case against her . This assumption
ignores the fact that the government had a signed,
Mirandized confession from Brown, as well as ATF forms
corroborating certain aspects of her confession. Thus,
Jordan's testimony was not essential to the government's
case. Brown's lack of evidence coupled with the strength of

                               7
the government's case absent Jordan's testimony persuade
us that the District Court did not err.

Second, Brown is unable to prove that the government
dismissed count six against Jordan because of an alibi
defense. In support of her position, Brown r elies upon
Jordan's Nunc Pro Tunc Motion for Appointment of an
Expert, which was filed well after the date of Br own's plea.
It asserts that during plea negotiations, the gover nment
and Jordan had a dispute over the number of counts for
which he was responsible. It alleges that Jor dan may have
had an alibi defense and that an investigation was
necessary before he would enter a plea of guilty or submit
to a lie detector test. An investigation ensued. The motion
then states that further plea negotiations led the
government to drop the disputed count fr om the guilty plea.
J.A. at 218-19. Therefore, according to Brown, Jordan's
alibi defense compelled the government to dr op count six of
the indictment. We disagree with Br own's interpretation.

The motion simply asserts the possibility of an alibi
defense; however, it does not demonstrate that Jordan had
an alibi. The mere fact that Jordan maintained that he had
an alibi does not mean that one existed. Additionally, the
motion neither states nor implies that the gover nment
dropped count six because Jordan had an alibi. To the
contrary, Special AUSA Sweeney testified that the
government chose not to charge Jor dan with count six of
the indictment because Brown refused to cooperate and
testify against him. Sweeney had no recollection of Jordan's
attorney informing her that he had an alibi defense as to
count six. See id. at 208-09. As Sweeney testified, Brown
was the only person who could identify Jordan as being
with her on the date of the purchase, and "when [she]
decided to exercise her constitutional right not testify we
simply had no evidence left, [and] I had no alternative but
to drop that count" against Jordan. Id. at 202-03.
Therefore, we agree with the District Court that the "Jordan
alibi theory" is sheer speculation.

Even if the Jordan plea agreement qualified under Brady,
we still conclude that there has been no violation. Although
the duty of disclosure under Brady is closely bound to due
process guarantees, "the Constitution is not violated every

                               8
time the government fails or chooses not to disclose
evidence that might prove helpful to the defense." Smith,
210 F.3d at 196 (citation omitted). The pr osecution's failure
to disclose evidence rises to the level of a due pr ocess
violation "only if the government's evidentiary suppression
undermines confidence in the outcome of the trial." Id. In
other words, a Brady violation occurs only if there is "a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the pr oceeding would
have been different." Id. at 197. Here, in light of Brown's
confession, the signed ATF Forms that corroborate her
confession, and Brown's agreement in open court that the
factual basis for the crimes, as recited by the government,
was accurate and correct, we conclude that she has not
undermined our confidence in the outcome of this case.

Finally, Brown's third argument, that she was "legally
innocent," fails. In assessing a defendant's claim of "legal
innocence" for purposes of withdrawal of a guilty plea, we
must first examine whether the defendant has asserted his
or her factual innocence. See Huff, 873 F.2d at 712
(rejecting claim of innocence where defendant failed to deny
that he was at the scene of the crime or that he committed
the offense). Bald assertions of innocence, however, are
insufficient to permit a defendant to withdraw her guilty
plea. See United States v. Salgado-Ocampo, 159 F.3d 322,
326 (7th Cir. 1998). "Assertions of innocence must be
buttressed by facts in the record that support a claimed
defense." Id. (citations omitted). In addition to reasserting
her innocence, a defendant must "give sufficient reasons to
explain why contradictory positions were taken before the
district court and why permission should be given to
withdraw the guilty plea." United States v. Jones, 979 F.2d
317, 318 (3d Cir. 1992).

Here, Brown asserts that she is "legally innocent"
because without Jordan's testimony, the gover nment would
be unable to prove its case against her beyond a reasonable
doubt. However, Brown neither ar gues nor presents any
evidence that she did not illegally purchasefirearms or
conspire to do so. Thus, she has failed to meaningfully
reassert her innocence or explain her contradictory
positions taken before the District Court. As such, we find
no fault with the District Court's analysis.

                               9
B. Sentencing

Brown next argues that the District Court erred by
refusing to grant her a downward adjustment pursuant to
S 3B1.2 for playing a mitigating role in the offense. Brown
contends that the PSI supports her position; it states that
she is less culpable than others because she only made one
purchase. Thus, she argues that the District Court's factual
finding on this question "had no evidentiary basis." We
exercise plenary review where the District Court's denial of
a downward adjustment is based primarily on a legal
interpretation of the Sentencing Guidelines. See United
States v. Isaza-Zapata, 148 F.3d 236, 237 (3d Cir. 1998).
However, where the District Court's decision rests on
factual determinations, we review for clear error. See id.

Section 3B1.2 affords a reduction in a defendant's offense
level if the defendant was either a minimal or minor
participant. It provides:

       Based on the defendant's role in the of fense, decrease
       the offense level as follows:

       (a) If the defendant was a minimal participant in any
       criminal activity, decrease by 4 levels.

       (b) If the defendant was a minor participant in any
       criminal activity, decrease by 2 levels.

       In cases falling between (a) and (b), decrease by 3
       levels.

U.S. SENTENCING GUIDELINESMANUAL S 3B1.2. The background
commentary to this provision indicates that its application
depends on the facts of a particular case. Reduction is
available for a defendant whose role in the of fense makes
her substantially less culpable than the average
participant. See id. at cmt. background. However, the mere
fact that a defendant was less culpable than his co-
defendants does not entitle the defendant to "minor
participant" status as a matter of law. See United States v.
West, 942 F.2d 528, 531 (8th Cir . 1991). If this were the
case, then the least culpable member of any conspiracy
would be a minor participant, regardless of the extent of
that member's participation. We reject this approach

                                10
because there are varying degrees of culpability present in
virtually every criminal conspiracy.

The Guidelines provide some guidance to district courts
attempting to determine whether a particular defendant
played a minimal or minor role in an of fense. Application
Note 1 provides that in order for a defendant's role to be
considered minimal, she must be among the least culpable
of those involved in the group conduct. Factors such as a
defendant's lack of knowledge or understanding of the
overall enterprise and others' activities ar e evidence of
minimal role in the offense. See U.S. SENTENCING GUIDELINES
MANUAL S 3B1.2 cmt. n. 1. Application Note 3 further
explains that "a minor participant means any participant
who is less culpable than most other participants, but
whose roles could not be described as minimal." Id. at cmt.
n.3 (emphasis added).

In addition to the Guidelines, our case law r equires that
we consider a number of other factors for deter mining
whether a defendant is entitled to a decrease for being a
minimal or minor participant in a conspiracy. Specifically,
in United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.
1991), we held that a defendant's eligibility for"minor
participant" status turned on whether the defendant's
"involvement, knowledge and culpability" wer e materially
less than those of other participants. This deter mination
depends upon the following: (1) the defendant's awar eness
of the nature and scope of the criminal enterprise; (2) the
nature of the defendant's relationship to the other
participants; and (3) the importance of the defendant's
actions to the success of the venture. Id. (quoting United
States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990)). The
District Court should consider each of these factors in
relation to the other participants in the conspiracy. See
Isaza-Zapata, 148 F.3d at 239.

Here, the District Court found that Brown was neither a
minimal nor a minor participant. Because the District
Court's determination, that Brown's r ole was not mitigating
in comparison to the others involved, was primarily factual
in nature, we review it only for clear err or. The record
supports the District Court's finding that Br own was aware
of the nature and scope of the criminal activity. The court

                               11
found that Brown presented the natur e of the scheme to
her cousin Latasha Green. She explained that Jordan
promised to pay $100.00 for Green's participation. As a
result, Green agreed to serve as a straw-purchaser. Brown
admitted she was present when Jordan collected Green to
make the straw purchase as well as when she r eturned.
Brown also admitted hearing Jordan instruct Green to
report that the guns she had purchased for him had been
stolen. Thus, Brown initiated Green's r ecruitment and knew
that the purpose of the scheme was to procur e untraceable
firearms.

Twelve days later, Brown willingly pur chased firearms for
Jordan so that she could earn her own $100.00. She knew
that Jordan intended to take the serial numbers off the gun
and wanted her to report them as stolen. At the gun store,
the dealer told Jordan that Brown "had to pick out the
guns since [she] had the ID." She did so, paid for the
weapons with money Jordan provided, andfilled out the
necessary forms. Thus, Brown's ar gument that she had
limited knowledge of the scope and nature of the conspiracy
is unpersuasive.

The record also demonstrates that Br own's involvement
was commensurate with, if not greater than, that of other
straw purchasers and that she was important to the
success of the venture. Like three of the four straw
purchasers involved in the scheme, Brown made a single
buy for Jordan. Only one of the four made two purchases.
However, unlike her co-conspirators who mer ely bought
guns, Brown "acted as an in-between, between a major
figure in the conspiracy and a cohort or co-equal in the
conspiracy." J.A. at 322-23. Thus, in this r espect, her
involvement was more serious than the other pur chasers.
Moreover, Brown's role was absolutely essential to the
success of Jordan's scheme. Without the initial purchase of
the weapons from a gun dealer, Jor dan would not have
been able to re-sell them on the street.

Accordingly, Brown's claim that she was"the least
culpable defendant" ignores the obvious: she was
responsible for the recruitment of Gr een, was essential to
the acquisition of firearms, and knew that Jordan planned
to remove the guns' serial numbers, making them

                               12
untraceable, and have her report them as stolen. In light of
the above, Brown is at least as culpable as the three other
women used by Jordan and/or co-defendant Jamal Rice to
effectuate their scheme. Therefor e, the record amply
supports the District Court's conclusion that Br own failed
to demonstrate that she merited a "mitigating r ole"
adjustment pursuant to Section 3B1.2.

III. CONCLUSION

In summary, for all the forgoing reasons, the District
Court's order and sentence will be affir med.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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