     Case: 15-40504      Document: 00513541227         Page: 1    Date Filed: 06/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                      No. 15-40504                        FILED
                                                                       June 9, 2016
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

              Plaintiff - Appellee

v.

EZELL BROWN, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                               USDC 4:12-CR-87-1


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       In this interlocutory criminal appeal, Defendant-Appellant Ezell Brown,
Jr., challenges the district court’s denial of his motion to dismiss the
indictment on double jeopardy grounds. After carefully reviewing the record,
the parties’ respective briefs, and relevant precedent, we agree with the district
court and therefore affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-40504
      Brown was a loan officer and the owner of Uniq Financial Services, which
is a loan correspondent approved by United States Department of Housing and
Urban Development (“HUD”) to originate FHA-insured loans. In connection
with these business dealings, Brown was charged by a federal grand jury in
the United States District Court for the Eastern District of Texas with three
counts of making false entries to federal credit institutions (Counts 1-3) and
one count of conspiracy to commit bank fraud (Count 4). Brown pleaded not
guilty, and the case proceeded to a jury trial. However, before the jury was
empaneled, the Government dismissed Counts 1 and 4. On the fourth day of
trial, the Government called HUD Special Agent Brandon Gardner to testify,
who the Government had planned to be its final witness before resting its case.
When the Government asked Gardner to refer to a loan document in order to
identify the location where the closing had occurred, Brown’s attorney objected
that the testimony lacked foundation because the loan document had not been
admitted as evidence of the truth of the matters contained therein. When the
district court inquired why the closing location had any relevance to the
proceedings, Brown’s attorney argued that the Government had not yet proven
that venue was proper in the Eastern District of Texas.
      After a lengthy discussion between the parties and the district court, the
district court advised the Government that Gardner could not “base his
testimony establishing venue in this case on a document that was not offered
or accepted into evidence to prove the truth of what’s in the document.” The
district court then took a recess, during which the parties conferred and
confected a plea agreement whereby Brown would plead guilty to Count 2 and
Count 3 would be dismissed. Pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), the parties agreed, inter alia, that Brown would serve a term of
imprisonment of one day followed by a three-year term of supervised release.
Relevant here, the plea agreement also provided that Brown would be given
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                                 No. 15-40504
the opportunity to withdraw his plea if the district court did not accept the
terms of the agreement.
      At the outset of the plea hearing, the district court advised the parties
that its acceptance of the plea agreement would be contingent upon the content
of the presentence report (“PSR”) and “if the presentence report shows that
there were significant losses to the Government and to the taxpayers as a
result of Mr. Brown’s conduct either through the count of conviction or relevant
conduct . . . then there is more than a small possibility that I will not approve
[the agreement].” The district court further advised the parties: “I’m not going
to approve a punishment that is disproportionate to the crime. . . . Of course,
if I don’t approve of the 11(c)(1)(C) plea agreement, then he can withdraw his
plea later.”
      Ultimately, after reviewing the PSR, the district court rejected the plea
agreement. Observing that Brown’s conduct had caused over $500,000 in
losses and that his guidelines range was 57-71 months of imprisonment, the
district court concluded that the one-day prison sentence contemplated by the
plea agreement was “nowhere near commensurate with what Mr. Brown did
as far as the evidence that I heard at trial.” Following the district court’s
rejection of the agreement, Brown withdrew his plea.
      After the Government elected to retry Brown, Brown filed a motion to
dismiss on double jeopardy grounds. Relying upon a supporting declaration of
his trial attorney, Brown argued that (1) if the initial trial had proceeded, the
district court would have been “required to direct a verdict against the
government” given the lack of evidence establishing venue; (2) during an off-
the-record conversation between counsel, counsel for the Government “assured
Mr. Brown’s counsel ‘not to worry’ because, if the Court did decide to reject the
plea, ‘it would likely work to Mr. Brown’s benefit’”; and (3) Brown’s counsel
assumed that this assurance from the Government meant that, if the district
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                                 No. 15-40504
court rejected the plea agreement, the Government would dismiss its case
against Brown “with or without pretrial diversion.” In the alternative, Brown
argued that the district court abused its discretion by dismissing the jury
without “manifest necessity” because, in Brown’s view, the district court
instead could have ordered an expedited PSR and retained the jury until the
court determined whether to accept the plea agreement or not.
      In a written order, the district court denied Brown’s motion to dismiss.
Citing our precedent in Fransaw v. Lynaugh, 810 F.2d 518 (5th Cir. 1987), the
district court concluded that the Double Jeopardy Clause did not preclude the
Government from retrying Brown after he withdrew his plea. The district
court noted that the trial had ended because Brown “abandoned the possibility
of acquittal” and voluntarily entered into the plea agreement with the
Government. As for Brown’s contention that he assumed the Government
would not retry him if the agreement were not accepted, the district court
observed that, “[r]egardless of whether the Defendant or his counsel were
under the impression that the Government would take some action other than
retrying this case,” Brown affirmatively denied that his guilty plea was based
upon any promises other than those contained in the plea agreement. Finally,
with respect to Brown’s argument that the district court should have retained
the jury and ordered an expedited PSR, the district court noted that neither
party had objected to the jury’s dismissal.
      On appeal, Brown resurrects the same arguments presented to and
rejected by the district court. We first address his argument that the Double
Jeopardy Clause bars the Government from retrying him. As the district court
correctly observed, our court in Fransaw held that the Double Jeopardy Clause
did not preclude the Government from retrying a defendant on both the same
count contained in a plea agreement and the count dismissed by the plea
agreement where the defendant later withdrew his plea. 810 F.2d at 524-29.
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                                 No. 15-40504
Similar to the instant case, the defendant in Fransaw entered into a plea
agreement with the Government after his criminal trial had commenced, but
he later withdrew his plea when he discovered that the trial judge would
sentence him higher than what he had anticipated. In holding that retrial did
not constitute double jeopardy, we observed that “a defendant should not be
able to reject a plea bargain and then erect the shield of double jeopardy to the
revived counts. This concern for fairness (and for the integrity of the plea
bargaining process) is equally compelling when the plea is entered and
abandoned after trial begins.” Id. at 526. To further buttress this conclusion,
we analogized to those Supreme Court cases sanctioning “retrials following
mistrials requested by defendants or mandated by ‘manifest necessity,’ such
as a hung jury.” Id. at 528. As we explained, “[l]ike the defendant who
abandons the possibility of acquittal in the first proceeding by requesting a
mistrial, Fransaw voluntarily surrendered the plea bargain’s refuge against
prosecution[.]” Id. at 528. So, too, in Brown’s case.
      Brown’s attempt to distinguish his case from Fransaw rests on the
fatally flawed premise that it was a foregone conclusion that the district court
would have been forced to enter a directed verdict against the Government due
to lack of evidence establishing venue. Contrary to Brown’s argument, the
record does not indisputably prove that the district court would have been
required to acquit Brown of the charges at the end of the Government’s case.
Although the Government had intended Agent Gardner to be its last witness,
it could have revised its plan and called an additional witness in order to
establish venue. Indeed, according to the Government, it could have had a
custodian from the title company arrive in “an hour or so” in order to testify
about venue. In other words, at the time the parties conferred to discuss a
plea, the Government had not yet rested its case and potentially could have
established venue via other avenues. Our conclusion in this regard is further
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                                 No. 15-40504
buttressed by an illuminating inconsistency in Brown’s central argument: if
the underlying record here so clearly would have compelled acquittal as Brown
maintains, then it is highly suspect that Brown and his counsel nevertheless
would have entered into a plea agreement resulting in a conviction, heavy fine,
and restitution. In sum, Brown has failed to persuade us that his case is so
materially distinguishable from Fransaw that we should not follow that long-
established precedent in his case. Accordingly, we agree with the district court
that double jeopardy does not bar his retrial.
      Finally, we likewise reject Brown’s argument that the district court
abused its discretion “in declaring a mistrial without ‘manifest necessity.’” As
an initial matter, the district court here did not declare a “mistrial.” Rather,
by voluntarily accepting a plea agreement with the Government, it was the
actions of Brown himself that ended the proceeding. Moreover, as the district
court accurately noted, Brown never objected below to the jury’s dismissal. We
therefore discern no reversible error in the district court’s decision to dismiss
the jury after Brown announced his intention to enter into a plea agreement
with the Government.
      For these reasons, the district court’s order denying Brown’s motion to
dismiss is AFFIRMED.




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