                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1292




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 05-1292

                           UNITED STATES OF AMERICA

                                              v.

                               DARRYLL L. BRISTON,

                                                   Appellant

                    On Appeal From the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Criminal No. 04-cr-00058)
                          District Judge: Hon. Alan N. Bloch

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 27, 2006

               Before: McKEE and VAN ANTWERPEN, Circuit Judges
                           and POLLAK, District Judge*


                            (Opinion filed:        July 14, 2006)



Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219

Jessica D. Silver
Gregory B. Friel
Karen L. Stevens


      *
         The Honorable Louis H. Pollak, Senior Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044-4403
Attorneys for Appellee

Caroline M. Roberto
429 Fourth Avenue,
Law & Finance Building, 5th Floor
Pittsburgh, PA 15219
Attorney for Appellant



                                         OPINION

McKEE, Circuit Judge.

       Darryll Briston asks us to review his criminal conviction following a jury trial. He

challenges the sufficiency of the evidence to establish federal jurisdiction, an aspect of the

jury charge, and certain evidentiary rulings. For the reasons that follow, we will affirm.

       Because we write primarily for the parties, who are familiar with this case, we

need not set forth the facts or background of this appeal.

                                              I.

       Briston’s first contention is that the government failed to prove the jurisdictional

element contained in 18 U.S.C. § 666(a)(1)(A)(i), which requires that prosecutions under

the section involve property “valued at $5,000 or more.”

       The government claims this argument was waived because Briston did not move

for a judgement of acquittal at the close of evidence, and we should therefore review for

plain error. See United States v. Mornan, 413 F.3d 372, 381 (3d Cir. 2005). However,

                                              2
that argument ignores the fact that the $5,000 threshold contained in the statute is

jurisdictional. “[S]ubject-matter jurisdiction, because it involves a court's power to hear a

case, can never be forfeited or waived. Consequently, defects in subject-matter

jurisdiction require correction regardless of whether the error was raised in district court.”

United States v. Cotton, 535 U.S. 625, 630 (2002). Accordingly, our review of the

sufficiency of the evidence to establish federal jurisdiction is plenary. See United States

v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998).

       Count 2 of the indictment charged Briston with violating 18 U.S.C. § 666 (a)(1)(A)

by embezzling, stealing, or knowingly converting $5,8851 belonging to Tamera Brice.

Briston argues that because he paid $1,600 to repair damage to Brice’s car over a year

after he took her funds, the government cannot prove that the value of the

misappropriated property was $5,000 or more. He bases this argument in part upon the

fact that the District Court reduced the restitution award by the $1,600 that was spent on

Brice’s car repair. We disagree.

       “[R]estitution or attempted restitution does not nullify or excuse a previous crime.”

Savitt v. United States, 59 F.2d 541, 544 (3d Cir. 1932). While a restitution order focuses

on the victim’s net loss, § 666(a)(1)(A)(i) focuses on the value of the property that has

been embezzled, stolen, or converted in the first place. That value will often be more



       1
         There is some confusion as to whether $5,855 or $5,885 was seized from Tamera
Brice’s residence. The difference is not material to our inquiry. For the sake of
consistency, we will use $5,885, the amount listed on the Receipt of Seized Property
prepared on the date Brice’s residence was searched. Supp. App. 3.

                                              3
than the victim’s net loss. See Valansi v. Ashcroft, 278 F.3d 203, 205-06 & n.3 (3d Cir.

2002). Here, the District Court ordered restitution in “the amount of funds belonging to

Miss Brice which were stolen . . . less the value of the funds returned by the defendant to

Miss Brice by paying for repairs to her automobile.” App. 682a-83a. Briston’s crime

was complete when he misappropriated and converted the original sum. His subsequent

restitution does not negate the fact that the government proved that he initially embezzled,

stole, or converted more than $5,000, thereby satisfying the jurisdictional threshold.

                                             II.

       Briston next asserts that neither the funds received by the Rankin Borough Police

Department under the Equitable Sharing Program nor the federal block grants received by

the city of Rankin Borough constitute “benefits” under 18 U.S.C. § 666(b). That is an

issue of statutory interpretation which we review de novo. See Unites States v. Zwick,

199 F.3d 672, 678 (3d Cir. 1999), abrogated on other grounds by Sabri v. United States,

541 U.S. 600, 604 (2004).

       18 U.S.C. § 666(b) criminalizes conduct by an agent of a state or local government

if the entity receives, in any one year period, “benefits in excess of $10,000 under a

Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other

form of Federal assistance.” To satisfy the $10,000 prerequisite, the government

presented evidence that in 2003, the Rankin Borough Police Department received

$19,813.31 from the United States Department of Justice under the Equitable Sharing

Program. The Equitable Sharing Program was instituted by the DOJ in order to


                                             4
implement 21 U.S.C. § 881(e), which authorizes the DOJ to transfer property forfeited as

a result of controlled substances investigations to state and local law enforcement

agencies. In United States v. Nichols, 40 F.3d 999 (9th Cir. 1994), the court concluded

that the sharing of forfeited narcotics assets pursuant to 21 U.S.C. § 881(e) is “a benefit

arising from a federal program designed to encourage cooperation in drug investigations,”

and that “as a recipient of such funds, the [sheriff’s department] is an agency covered by

666(b).” Id. at 1000-01.

       Although we are obviously not bound by Nichols, we agree with that court’s

analysis. Our inquiry is also guided by the Supreme Court’s analysis in Fischer v. United

States, 529 U.S. 667 (2000). There, the Court explained that “[t]he inquiry should

examine the conditions under which the organization receives the federal payments. The

answer could depend . . . on whether the recipient’s own operations are one of the reasons

for maintaining the program.” Id. at 681.

       In Fischer, the Supreme Court examined whether Medicare payments to hospitals

constituted “benefits” under § 666(b). The Court’s affirmative answer was influenced by

the fact that Medicare has a purpose beyond reimbursement (ensuring availability of

quality health care for the community); and by the fact that the organizations receiving

Medicare funds played “a vital role . . . in carrying out the program’s purposes” and were

subject to “substantial Government regulation.” Id. at 679-81. Accordingly, the Court

concluded that Medicare reimbursements constituted “benefits” under § 666. Id. at 682.

       The funds at issue here are no different for purposes of our analysis. Like


                                              5
Medicare funds, Equitable Sharing funds are made available “for significant and

substantial reasons in addition to compensation or reimbursement.” Fischer, 529 U.S. at

679. Recipients are not awarded Equitable Sharing funds merely as reimbursement for

participating in a criminal operation. Rather, the Attorney General must ensure that the

funds “will serve to encourage further cooperation between the recipient State or local

agency and Federal law enforcement agencies.” 21 U.S.C. § 881(e)(3)(B). As in Fischer,

the Rankin Borough Police Department plays a vital role in the program at issue. As

Congress has emphasized, “cooperation among Federal, State and local law enforcement

agencies is critical to an effective national response to the problems of violent crime and

drug trafficking in the United States.” National Law Enforcement Cooperation Act of

1990, Pub. L. No. 101-647, § 612(1), 104 Stat. 4789, 4823 (1990).

       Furthermore, the Rankin Borough Police Department is subject to substantial

regulation because it receives Equitable Sharing funds, and the DOJ has adopted

comprehensive binding guidelines to govern the program. See Supp. App. 18-60. The

guidelines impose numerous restrictions on the use and handling of funds, and recipients

are required to submit an annual report certifying compliance with the guidelines. Supp.

App. 41, 55.

       Accordingly, we hold that the Equitable Sharing funds constitute “benefits” for the

purposes of § 666. The amount of those benefits easily satisfies the statutory threshold,

and we therefore need not inquire into whether federal block grants also constitute




                                             6
“benefits” under § 666.2

                                              III.

       Briston contends that the determination of what constitutes “benefits” under 18

U.S.C. § 666(b) is a jury question, and the court therefore erred in instructing the jury that

Equitable Sharing funds are federal benefits for purposes of § 666 as a matter of law. See

Appellant’s Br. 41-42. We again disagree.

       Since Briston is claiming that the District Court committed an error of law, our

review is plenary. See United States v. McLaughlin, 386 F.3d 547, 552 (3d Cir. 2004).

The determination of whether funds provided under a specific federal program constitute

“benefits” for the purpose of 18 U.S.C. § 666(b) neither requires nor allows a case-by-

case factual inquiry by a jury. It is clear from our discussion above, and the Court’s

analysis in Fischer, that this is a statutory inquiry that requires a court to decipher

congressional intent by analyzing the “program’s structure, operation, and purpose.”

Fischer, 528 U.S. 681. This is plainly a question of law, not an issue of fact for the jury.

Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).

                                              IV.

       Briston contends that the District Court abused its discretion when it excluded


       2
        Briston attempts to avoid the jurisprudential sting of the analysis in Fischer by
focusing on the fact that the Court also warned that § 666 is not limitless in its reach and
can not be read to include all recipients of federal funds. See Appellant’s Br. 33 (quoting
Fischer, 529 U.S. at 681). While we agree that § 666 is not limitless in its scope and
reach, we disagree with Briston’s conclusion that the statute does not reach the funds at
issue here. Given the analysis in Fischer, we think it clear that the these funds are within
the reach of § 666.

                                               7
testimony about the hostile relationship between him and the mayor of Rankin Borough.

Briston also relies upon Government of the Virgin Islands v. Mills, 956 F.2d 443 (3d Cir.

1992), to claim that the exclusion was a violation of his Sixth Amendment right to

compulsory process. See Appellant’s Br. 43-44. The court’s action was neither an abuse

of discretion nor a denial of Briston’s right to compulsory process.

       Briston was charged in Count 4 with obstruction of justice for causing a fellow

police officer to place an envelope containing purported evidence relating to the Tamera

Brice investigation into a Rankin Borough Police Department evidence locker. Rankin

Borough police officer Jeff Novak testified that when Briston asked Novak to place the

envelope into the locker, Briston explained that there were “things he had to keep at

home” and “hide” from the mayor of Rankin Borough because Briston “didn’t trust him.”

App. 426a, 434a.

       Briston offered to present witnesses who would testify that when the mayor’s son,

and later his nephew, were arrested, the mayor attempted to interfere with their

prosecution. Briston claims that he wanted to show that the mayor may have intimidated

witnesses and tampered with police records and evidence. The witnesses would also have

testified that Briston publicized allegations of mayoral misconduct on local television.

App 504a. The trial judge concluded that the testimony was irrelevant and excluded it.3



       3
         Defense counsel wanted to use this evidence to show through a chain of
inferences that Briston had taken the envelope home because he did not trust the mayor.
The judge disallowed this, in part, because the defense could not show that Briston ever
took this envelope home in the first place. App. 443.

                                             8
App. 506a-07a.

       It is far from clear whether this testimony would have been helpful to Briston. It

is, however, clear that it would have had the potential to confuse the jury and sidetrack

the proceedings. The proposed evidence was highly prejudicial to the mayor and his

family (none of whom were on trial) and, had it been admitted, would have paved the way

for a significant detour into allegations with a nexus to the charges that was tangential at

best. District courts have “broad discretion to exclude collateral matters that are likely to

confuse the issues.” United States v. Casoni, 950 F.2d 893, 919 (3d Cir. 1991). The

District Court’s denial of this testimony was an appropriate exercise of discretion,

intended to keep the proceedings “on track.” The proffered testimony was only

marginally relevant, if at all, and posed a substantial risk of confusion. The court

properly exercised its discretion in not allowing the proposed testimony into evidence.

See Crane v. Kentucky, 476 U.S. 683, 689-90 (1986).

       Briston’s attempt to rely upon our decision in Mills to forge a Sixth Amendment

claim from the denial of this testimony fares no better. “The Sixth Amendment requires

more than a mere showing by the accused that some relevant evidence was excluded from

his trial. Rather, the accused must show how that testimony would have been both

material and favorable to his defense.” Mills, 956 F.2d at 446 (emphasis in original).

The testimony the District Court excluded was certainly not material, and it was only

theoretically favorable at best. More realistically, the benefit the defendant would have

derived from the excluded evidence would have been the jury confusion and its potential


                                              9
to prejudice the mayor and his family. Nor can Briston show, as he must, “that the

deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural

purpose.” Mills, 956 F.2d at 446. Briston’s right to produce evidence under the Sixth

Amendment is clearly subject to the Rules of Evidence. See Bronshtein v. Horn, 404

F.3d 700, 729 (3d. Cir. 2005). Here, as in Bronshtein, “the trial court apparently applied

[the] familiar evidence rule allowing the exclusion of evidence if its probative value is

outweighed by the danger of confusion of the issues.” Id. Thus, the “deprivation” was

neither arbitrary nor disproportionate to a legitimate evidentiary purpose.

                                             V.

       Finally, Briston argues that the District Court abused its discretion in rejecting a

request to substitute “Tamera Brice” for “a person” in the jury instruction on Count 1

under 18 U.S.C. § 242. This argument is totally frivolous and deserves only the briefest

discussion at best.

       In determining whether the jury instruction was properly given, we examine the

totality of the instructions and consider “whether, viewed in light of the evidence, the

charge as a whole fairly and adequately submits the issues in the case to the jury.” Bennis

v. Gable, 823 F.2d 723, 727 (3d Cir. 1987). Reversal is required where “the instruction

was capable of confusing and thereby misleading the jury.” Id.

       Here, Brice’s money was the focus at trial; no other funds were mentioned; and

both defense counsel and the Assistant United States Attorney referred to Brice by name

during their respective closing arguments. Moreover, Brice testified about Briston’s


                                             10
misappropriation of her funds. The reference to “a person” in the jury charge was not

confusing, and we find no error in the court’s denying Briston’s request to substitute

“Tamera Brice” for that phrase.

                                            VI.

       For the reasons stated above, the judgment of conviction will be affirmed.




                                            11
