     Case: 12-50132       Document: 00512201600         Page: 1     Date Filed: 04/08/2013




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

                                                                            FILED
                                                                            April 8, 2013

                                       No. 12-50132                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

FRANK ARTHUR BROWNING

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 3:11-CR-692-1


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       After a jury trial in 2011, Frank Arthur Browning was convicted of
conspiring to possess, with intent to distribute; possessing, with intent to
distribute; conspiring to import; and importing 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841, 846, 952, 960, and 963. He
contends: the district court erred in admitting three of his prior convictions
(impeachment evidence), because they occurred more than ten years before trial
and their probative value did not substantially outweigh their prejudicial effect,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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making them inadmissible under Federal Rule of Evidence 609(b); and his
sentence, enhanced pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851, is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). The
Government moves to supplement the record on appeal.             The motion to
supplement is GRANTED IN PART and DENIED IN PART; the judgment is
AFFIRMED.
                                        I.
        In March 2011, Browning crossed a pedestrian bridge from Juarez, Mexico,
to El Paso, Texas. Due to his suspicious, nervous behavior, he was referred to
secondary screening by United States Immigration and Customs Enforcement
(ICE) Agents.     During that screening, an Agent discovered two packages
attached to Browning’s body; a field test revealed the packages contained
methamphetamine.          Browning    and    David   Brooks,   who   transported
methamphetamine across the border alongside Browning, were indicted.
        Browning testified at his trial in November 2011. He admitted knowingly
transporting the methamphetamine into the United States, but claimed he had
done so under duress. He maintained that, if he had not transported the
methamphetamine, those organizing the endeavor would have physically
harmed him and his wife and son.
        At the start of trial, a hearing was held on motions in limine. Browning
moved for the exclusion from evidence of any of his prior convictions, contending
they would be more prejudicial than probative if used for impeachment when he
testified. The Government responded that, if Browning testified, it should be
allowed to use his prior convictions to impeach his credibility. The parties
informed the court about five of Browning’s prior convictions. The court granted
Browning’s motion in part, excluding any prior convictions occurring before
1990.



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      On direct examination, Browning acknowledged a 1998 unarmed-robbery
conviction and a 2000 controlled-substance conviction. At a bench conference
before cross-examination, Browning’s counsel advised the court that he had
asked Browning about those two prior convictions because he believed they were
the only two the court would admit as impeachment evidence.
      At that conference, the Government reconfirmed that the court would
allow impeaching Browning using other prior convictions:         a 1991 escape
conviction and a 1992 controlled-substance conviction. In response, regarding
the 1991 escape conviction, defense counsel: objected, citing the presumption in
Federal Rule of Evidence 609 that any conviction more than ten years old is
more prejudicial than probative; and asked that the Government be required to
prove that conviction was a felony. The court reiterated its earlier ruling that
any prior convictions occurring after 1989 would be admitted and overruled the
objection.
      During cross-examination, without the years of conviction being stated,
Browning was asked about: his conviction for escape in Carson City, Nevada,
for which he served one year’s imprisonment; his escape conviction from Olathe,
Kansas, for which he served one to two years’ imprisonment; and his drug-
related conviction from Hutchinson, Kansas, for which he served two to four
years’ imprisonment. The objection “to this line of questioning” was overruled.
The Government closed the prior-convictions questioning by referring to the two
convictions to which Browning had admitted during direct examination, and
then listed all five convictions to summarize them for the jury. Defense counsel
objected, contending the summary was “clearly being used for propensity, not
impeachment”; the objection was overruled.
                                      II.
      On appeal, Browning contended initially: the Government used a 1989
conviction, despite the district court’s ruling it excluded; and the Carson City,

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Nevada, escape conviction was a misdemeanor, and therefore not admissible for
impeachment. Browning admitted in his reply brief, however, that the 1989
conviction was not used at trial and, therefore, is a non-issue in this appeal.
With respect to the Nevada escape conviction, the Government contends Nevada
law provides felony escape is punishable by at least one year’s imprisonment,
NEV. REV. STAT. § 212.090, and Browning received such a sentence. Further, at
oral argument the Government showed Browning has two prior convictions for
escape in Nevada; it conceded the one not referred to at trial may have been a
misdemeanor, but maintained the one used for impeachment was a felony.
      In that regard, a Carson City, Nevada, escape conviction appears in the
pre-trial services report (PTSR), whose requested addition to the record is
addressed below; the PTSR confirms that Browning received a sentence of one
year’s imprisonment for that conviction. As noted, on cross-examination, the
Government expressly referred to Carson City for the escape conviction, and
Browning made no specific objection.
                                       A.
      In seeking to supplement the appellate record, the Government moves to
add the PTSR, which the district court reviewed during trial and to which the
Government referred during Browning’s cross-examination. Because Browning
does not oppose including the PTSR in the record, and the report was available
to both parties at trial, that part of the motion is GRANTED.
      The Government moves to add two more documents to the record, which
were not available at trial. “We will not ordinarily enlarge the record on appeal
to include material not before the district court.” United States v. Flores, 887
F.2d 543, 546 (5th Cir. 1989). The Government has provided no reason to depart
from the usual rule; that part of the motion seeking to supplement the record
with these two additional documents is DENIED.



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                                         B.
      Regarding Browning’s challenges to some of his prior convictions being
admitted into evidence, “[r]eview of a trial court’s evidentiary rulings is for abuse
of discretion, subject to harmless error review”. United States v. Ebron, 683 F.3d
105, 133 (5th Cir. 2012) (citation omitted); see FED. R. EVID. 103(a). The court
abuses its discretion when it rules “based on an erroneous view of the law or a
clearly erroneous assessment of the evidence”. Ebron, 683 F.3d at 133 (internal
quotation marks and citation omitted).
      On the other hand, if Browning failed to preserve a challenge to an
evidentiary ruling, review is only for plain error. E.g., United States v. Avants,
367 F.3d 433, 448 (5th Cir. 2004); see FED. R. EVID. 103(e). To meet this difficult
standard, Browning must show a clear or obvious error that affected his
substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). Even
then, we will exercise our discretion to remedy the error only if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings”. Id.
(internal quotation marks and citation omitted).
                                         1.
      For the challenged admission of the Carson City, Nevada, escape
conviction in 1991 (the Nevada conviction), the applicable standard of review
must first be addressed.
                                         a.
      The Government contends: Browning challenges the Nevada conviction
for the first time on appeal; and, therefore, plain-error review applies. In that
regard, Browning did not object to that conviction specifically, objecting only to
the “line of questioning” that included Browning’s Nevada conviction. Browning
maintains the Government failed to provide reasonable notice of its intent to use
the Nevada conviction, in violation of Rule 609(b)(2), and therefore should be



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estopped from urging plain-error review. No authority need be cited for the rule
that we, not the parties, decide upon the appropriate standard of review.
      To preserve a claimed evidentiary error, a timely objection to the district
court’s ruling must state the “specific ground of objection”. United States v.
Seale, 600 F.3d 473, 485 (5th Cir. 2010) (quoting FED. R. EVID. 103(a)(1))
(emphasis added). A party seeking to preserve the objection must give the
district court an opportunity to rule on the specific ground on which the objection
rests. Id. at 486. Browning’s only objection reasonably attributable to the
Nevada conviction was his general objection to the “line of questioning”; he did
not specify either that he was referring to the Nevada conviction, the lack of
notice, or that the conviction was more prejudicial than probative. Therefore,
the admission of the Nevada conviction is reviewed only for plain error. See id.
at 486-87.
                                        b.
      Browning has not shown reversible plain error. Even assuming admitting
the conviction constitutes clear or obvious error, it did not affect his substantial
rights: as discussed below, any error in admitting any of the challenged prior
convictions was harmless. Moreover, even if reversible plain error were shown,
we would not exercise our discretion to remedy the error because it does not
affect the “fairness, integrity or public reputation of judicial proceedings”.
                                         2.
      The challenged admission, during Browning’s cross-examination, of the
other two convictions is reviewed for abuse of discretion. E.g., Ebron, 683 F.3d
at 133. This analysis is subject to harmless-error review. Id. As discussed below,
even assuming error, it was harmless.
      The assumed error must be viewed in the context of the entire trial. United
States v. Wells, 262 F.3d 455, 463 (5th Cir. 2001). Reversal is appropriate only
if the challenged evidence “had a substantial impact on the verdict”. Id. (internal

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quotation marks omitted). Because the Government presented overwhelming
evidence of Browning’s guilt, the admission of his prior convictions for
impeachment purposes on cross-examination did not have such an impact. E.g.,
United States v. Hare, 150 F.3d 419, 424 (5th Cir. 1998), overruled on other
grounds, United States v. Doggett, 230 F.3d 160 (5th Cir. 2000). This is especially
true in the light of his having admitted on direct examination to two other prior
convictions.
      At   trial,   Browning     admitted    to   knowingly     transporting    the
methamphetamine into the United States and to knowingly and intentionally
selling some methamphetamine on behalf of one of the men he claimed were
threatening him and his family during the events leading up to his transporting
drugs from Mexico. He acknowledged he had not used duress as a explanation
for his actions when questioned by an ICE Agent at the time of his crossing into
the United States from Mexico. Moreover, the Government showed several other
inconsistencies between Browning’s trial testimony and his statements to ICE
Agents at the border crossing–factors that impeached his credibility without the
use of his prior convictions.
      Moreover, regarding duress, Browning testified he and his family had been
threatened via text message, and that those threatening text messages were
never deleted from his cellular telephone. Yet an investigator from the public
defender’s office, working on Browning’s behalf, testified she did not find a single
threatening text message on Browning’s telephone.
      Therefore, without considering Browning’s prior convictions offered by the
Government, the jury had more than enough evidence to conclude he was not a
credible witness and to find, beyond a reasonable doubt, that he was guilty of the
charged offenses.




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                                        C.
      Browning contends his sentence, which was increased to life imprisonment
pursuant to 21 U.S.C. §§ 841(b)(1)(A) (increasing minimum sentence for offenses
involving high volumes of illicit substances) and 851 (authorizing increased
sentence by reason of prior convictions), is unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He acknowledges this contention
is foreclosed by precedent, e.g., United States v. Mata, 491 F.3d 237, 245 (5th
Cir. 2007), and raises it only to preserve it for possible further review.
                                       III.
      For the foregoing reasons, the Government’s motion to supplement the
record is GRANTED IN PART and DENIED IN PART; and the judgment is
AFFIRMED.




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