14-3497-cr
United States v. Brown


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of December, two thousand and fifteen.

Present:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                SUSAN L. CARNEY,

                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

                v.                                                          No. 14-3497-cr

QUARON BROWN,


                      Defendant-Appellant.

____________________________________________________

For Defendant-Appellant:      Matthew W. Brissenden, P.C., Garden City, NY.

For Appellee:           Marcia M. Henry and Emily Berger, Assistant United States
                        Attorneys, for Kelly T. Currie, Acting United States Attorney for
                        the Eastern District of New York, Brooklyn, NY.
____________________________________________________
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       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Weinstein, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Following a jury trial, Defendant-Appellant Quaron Brown was convicted of conspiracy

to distribute marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and possession of marijuana

with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Brown was sentenced to, inter

alia, concurrent terms of 60 months’ imprisonment on all counts. With the assistance of counsel,

Brown argues that his decision to represent himself at trial was not knowing and intelligent, and

he also makes a number of arguments acting pro se. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       1. Brown’s Waiver of his Right to Counsel

       The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.

“There is, however, the correlative right to dispense with legal assistance and represent oneself.”

Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) (citing Faretta v. California, 422 U.S.

806, 818–34 (1975)). “Because a defendant who decides to act pro se relinquishes traditional

benefits associated with formal legal representation, the district court must ensure that the

accused made [his] decision ‘knowingly and intelligently.’” Id. (quoting Faretta, 422 U.S. at

835). “Though the defendant himself need not have the skills and experience of a lawyer to

validate his choice, there must be assurance that he has been ‘made aware of the dangers and

disadvantages of self-representation.’” United States v. Maldonado-Rivera, 922 F.2d 934, 977

(2d Cir. 1990) (quoting Faretta, 422 U.S. at 835).

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       In order to confirm that the accused’s decision to represent himself was made knowingly

and intelligently, the court must ordinarily explore the facts and circumstances surrounding the

case, including “the background, experience, and conduct of the accused.” United States v.

Tompkins, 623 F.2d 824, 827 (2d Cir. 1980) (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). In particular, the court must consider “whether the defendant understood that he had a

choice between proceeding pro se and with assigned counsel, whether the defendant understood

the advantages of having one trained in the law to represent him, and whether the defendant had

the capacity to make an intelligent choice.” United States v. Hurtado, 47 F.3d 577, 583 (2d Cir.

1995) (internal quotation omitted). Further, the defendant must be informed “of the nature of

the charges, the range of allowable punishments, and the risks of self-representation.” Torres,

140 F.3d at 403. Although the requirement of a “full and calm discussion is not absolute,”

Tompkins, 623 F.3d at 828 (internal quotation and citation omitted), the court should engage in

an on-the-record inquiry that “will normally entail formal questioning of the defendant.”

Maldonado-Rivera, 922 F.2d at 977. “From defendant’s answers and from its own observations,

the trial court must be persuaded that the waiver is a rational one, and that defendant has the

mental capacity to comprehend the consequences of relinquishing a constitutional right.” United

States v. Schmidt, 105 F.3d 82, 88 (2d Cir. 1997).

       In making this inquiry, we have stressed that district courts are not required to “follow a

formulaic dialogue” with defendants, United States v. Fore, 169 F.3d 104, 107 (2d Cir. 1999), or

to resort to “talismanic procedures,” Hurtado, 47 F.3d at 583. While we have “strongly endorsed

Faretta warnings as a factor important to the knowing and intelligent waiver of counsel, we

have, at the same time, also rejected rigid waiver formulas or scripted procedures, and

emphasized that ‘knowing and intelligent’ waivers depend on the totality of the circumstances.”



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Dallio v. Spitzer, 343 F.3d 553, 563 (2d Cir. 2003) (internal citations omitted). On appeal, this

Court “need not analyze the district court’s every word, so long as the record as a whole

demonstrates that the defendant knowingly and intelligently waived [his] right to counsel.”

Torres, 140 F.3d at 401.

       In this case, the record “plainly reveals that the defendant’s choice was knowing and

intelligent.” Maldonado-Rivera, 922 F.2d at 977. Brown’s contention that the district court did

not adequately inform him of the nature of the charges, the range of allowable punishment, and

the risks and benefits of proceeding without counsel is belied by the record. At numerous

junctures prior to the trial, the district court informed Brown of the benefits of counsel and the

dangers of self-representation. Although Brown made known to the court on the eve of trial that

he did not understand the government’s evidence and that he was not sure if he could adequately

represent himself, the court confirmed during the final pretrial conference that Brown knew that

he would be prejudiced by proceeding pro se, that his sentence could be increased based on the

evidence presented at trial, that he had been warned repeatedly that proceeding pro se would be

“extremely dangerous,” and that, despite these admonishments, he still wished to proceed pro se.

JA 133. Brown repeatedly confirmed to the court, moreover, that he understood the

consequences of proceeding pro se, including in his assurances to the court in response to the

government’s concern that his waiver was not “unequivocal.” JA 403.

       Prior to trial, Brown was apprised of the evidence that would be presented against him,

including recorded conversations and direct testimony establishing his role as a major player in

the drug conspiracy. Brown also understood, based on the government’s representations to the

court, that he potentially faced a mandatory minimum ten-year sentence if he was convicted of

all charges at trial and a five-year mandatory minimum sentence if he pleaded guilty. In



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addition, the district court had the opportunity to observe Brown and assess his knowledge and

comprehension through Brown’s pro se filings with the court and during several status hearings

prior to trial. Ultimately, the court concluded that, based on the totality of the circumstances,

Brown was “highly intelligent,” JA 87, and “competent within the limits of the average layman

to exercise his defense,” JA 128. The court’s conclusion is fully supported by the record.

       2. Brown’s remaining claims

       Brown makes a number of pro se claims on appeal. First, Brown argues that his rights

under the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V, cl. 2, were

violated because the grand jury twice superseded the original indictment. This argument is

unavailing because jeopardy does not attach until the trial “jury is empaneled and sworn.”

United States v. Razmilovic, 507 F.3d 130, 136 (2d Cir. 2007).

       Second, Brown claims that venue was not proper in the Eastern District of New York

because there was no evidence that Brown committed a crime in New York. Relatedly, Brown

contends that the “interstate commerce” nexus required to establish federal subject matter

jurisdiction was absent and that the government “manufactured” federal jurisdiction by

instructing one of the cooperating witnesses to travel across state lines. Appellant’s Br. at 7.

Brown’s arguments are belied by the evidence presented at trial, which showed that Brown

participated in a large drug conspiracy that spanned multiple states, including New York.

Further, there was evidence directly tying Brown’s drug activities to the Eastern District of New

York, including witness testimony that Brown delivered drug proceeds to a co-conspirator in

Queens, New York.




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       Finally, we address Brown’s challenges to the sufficiency of the evidence to support his

conviction.* “[A] defendant challenging the sufficiency of the evidence ‘bears a heavy burden.’”

United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (quoting United States v. Hawkins,

547 F.3d 66, 70 (2d Cir. 2008)). “On such a challenge, we view the evidence in the light most

favorable to the government, drawing all inferences in the government’s favor and deferring to

the jury’s assessments of the witnesses’ credibility.” Id. “We must uphold the jury’s verdict as

long as ‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

       To convict a defendant of conspiracy, “the government must show that two or more

persons entered into a joint enterprise for an unlawful purpose, with awareness of its general

nature and extent.” United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010). “Moreover, a

particular defendant’s membership in a conspiracy requires proof of [his] purposeful behavior

aimed at furthering the goals of the conspiracy.” United States v. Diaz, 176 F.3d 52, 97 (2d Cir.

1999) (internal quotation omitted). To prove possession with the intent to distribute, the

government was required to show that Brown knowingly and intentionally possessed marijuana

and did so with the intent to distribute it. United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir.

2004). Because both the conspiracy and substantive charges are specific intent crimes, the


       *
          In addition, Brown makes several other unavailing arguments. He contends that the
court failed to inform him of the import of 28 U.S.C. § 1345 and 28 U.S.C. § 1582, but those
statutes are not applicable to the criminal proceedings in this case. Further, Brown contends that
his constitutional rights were violated by a DEA agent’s testimony regarding “unwarranted
phone conversations” and “fabricated summarized Fed Ex records,” as well as the government’s
presentation of “false evidence” at trial, Appellant’s Br. at 9, 10, but he points to no evidence to
support these allegations. Finally, Brown contends that the court erred by failing to give a jury
instruction on the “conscious avoidance” doctrine, but that doctrine was not relevant to the
charges against him. Id. at 10.


                                                 6
government was required to prove that Brown “knowingly and intentionally participated in the

drug deal” alleged in the indictment. Id. In this regard, the government “need not prove that the

defendant knew the specific drug at issue, but only that he was dealing with some controlled

substance.” United States v. Davis, 690 F.3d 127, 131 (2d Cir. 2012). Further, “[b]oth the

existence of a conspiracy and a given defendant’s participation in it with the requisite knowledge

and criminal intent may be established through circumstantial evidence.” United States v.

Stewart, 485 F.3d 666, 671 (2d Cir. 2007).

       Here, the evidence was plainly sufficient to establish both the existence of a drug

conspiracy and Brown’s participation in the conspiracy. The government’s evidence, including

the testimony of cooperating witnesses and government agents, Brown’s recorded conversations,

phone records, and Federal Express records, established that Brown had a major role in funding

and planning the conspiracy and that he directly distributed a large amount of marijuana. Brown

claims that the evidence against him was fabricated, but it was for the jury, not this Court, to

determine the credibility of the witnesses and the weight of the evidence. Aguiar, 737 F.3d at

264.

       For the reasons stated, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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