U.S. v. Brannan

• Decision Date: 23 March 2009
• Docket Number: No. 07-12179.,07-12179.
• Citation: 562 F.3d 1300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter E. BRANNAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

562 F.3d 1300

UNITED STATES of America, Plaintiff-Appellee, v. Walter E. BRANNAN, Defendant-Appellant.

No. 07-12179.

United States Court of Appeals, Eleventh Circuit.

March 23, 2009.

Bruce Alan Gardner, Atty. at Law, Huntsville, AL, for Defendant-Appellant.

Michael Boysie Billingsley, Joyce White Vance, Asst. U.S. Atty., Birmingham, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before MARCUS, KRAVITCH and ANDERSON, Circuit Judges.

MARCUS, Circuit Judge:

Walter Brannan appeals his convictions for the Alabama state law offenses of indecent exposure and public lewdness while in the Wheeler National Wildlife Refuge, an area under the jurisdiction of the United States, all in violation of 50 C.F.R. § 27.83 and 16 U.S.C. § 668dd. On appeal, Brannan challenges his conviction for indecent exposure on the grounds that the charging information was faulty because it left out an essential element of the crime, and, more generally, he challenges both convictions on the grounds that the district court abused its discretion by admitting evidence of Brannan's other similar acts under Fed. R.Evid. 404(b). After thorough review, we affirm.

I.

The relevant facts and procedural history are these. The Wheeler National Wildlife Refuge is a federal property located in Alabama that is open to the general public. In the summer of 2006, Federal Wildlife Officers conducted a covert operation to identify and charge any individuals engaged in illegal sexual activity in the park, pursuant to 16 U.S.C. § 668dd and 50 C.F.R. § 27.83.¹ Based upon conduct that occurred on July 20, 2006 during a walk in the Wildlife Refuge, Brannan was charged with two Alabama state law violations on a federal reservation: Count One alleged indecent exposure and Count Two public lewdness.² On the morning of trial, before voir dire had commenced, Brannan raised an issue for the first time regarding the sufficiency of Count One (indecent exposure). Brannan argued that although the Alabama indecent exposure statute did not mention consent, a later provision of Alabama law incorporated the victim's lack of consent as an essential element into all crimes arising under the same article.

Specifically, Title 13A, Article 6 of the Alabama Criminal Code at § 13A-6-68, provides that:

A person commits the crime of indecent exposure if, with intent to arouse or gratify sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm in any public place or on the private premises of another or so near thereto as to be seen from such private premises.

Ala.Code § 13A-6-68. The later provision, § 13A-6-70, in turn says that:

Whether or not specifically stated, it is an element of every offense defined in this article ... that the sexual act was committed without consent of the victim.

Ala.Code § 13A-6-70. Because Count One did not include this element of non-consent, Brannan argued that the count for indecent exposure was defective. Notably, however, Brannan said that he was not asking the Government to refile an information alleging the missing element, nor that he was trying to delay the trial, but that he would agree to an amendment to the Count. No such amendment was made.

The colloquy between defense counsel and the district court included the following exchange:

Mr. Gardner: And it's not charged in the information. That element is not in the information, and I told David [Estes, Prosecutor].

The Court: I see what you're saying. It wasn't properly charged.

Mr. Gardner: And I'm not trying to dodge a trial today. In fact, I would agree to an amendment that would include that, but I do think it clearly states here it's an element.

The Court: So you're not asking them to supercede or to refile—it's not an indictment—but to refile an information alleging that element?

Mr. Gardner: No, I'm not.

The Court: I will look at it, and we will talk at the charge conference. I don't want to say right now, unless you already know that you agree to it.

R2 at 7-8 (emphasis added).

After the voir examination was completed and the jury was impaneled and sworn but before opening statements commenced, the district court conducted a preliminary charging conference with counsel, at which time Brannan again raised the issue of consent. The following exchange occurred between the prosecutor (Mr. Estes), defense counsel (Mr. Gardner), and the district court:

Mr. Estes: I have two arguments. I think, first, to frame your argument and make sure I understand it, he's saying because I did not allege it in the information, there's a problem?

The Court: No. He's saying he's going to waive that for sure. He's going to waive that; right? Were you saying that? I'm not trying to put words in your mouth.

Mr. Gardner: I just say it's an element. I'm not going to ask for it to be dismissed or us not to proceed today.

R2, at 24-25 (emphasis added).

After a brief recess, the preliminary charging conference resumed, at which time the district court determined that it would not include in its jury instructions the victim's lack of consent as an element of Count One. At that point, the court asked whether either party had anything else to address. Defense counsel said, "No." Trial commenced shortly thereafter. Notably, at no time before or during trial did the defendant move to either dismiss the charging information on the ground that the charge omitted an essential element, or seek a continuance to give the prosecution an opportunity to change the charging instrument.

The Government presented at trial, among others, the testimony of Darron Speegle, who was a Federal Wildlife Officer assigned to the Wheeler National Wildlife Refuge. He explained that in July of 2006 citizens essentially were deprived access to certain areas within the Wildlife Refuge "because of illegal deviant sexual activity." In order to address this problem, the Officer asked for the assistance of other Federal Wildlife Officers to conduct a covert operation to surveil, identify, and charge any individuals who may be engaged in illegal conduct.

One of the participating officers, Greg Blanks, was assigned to act in a non-uniformed capacity as a member of the public, walking the trails and sitting on the park benches. Blanks testified that on July 26, 2006, he encountered the defendant Brannan, who initially walked by Blanks as Blanks sat on a bench. Soon thereafter, according to the Officer, Brannan returned, approached Blanks, and said hello. Brannan told Blanks that he (Brannan) had spent the morning having sex with a friend and had taken photographs. Then the defendant, who stood two feet in front of Blanks, began to rub his groin area, exposed his erect penis, began to masturbate, and asked the Officer if he wanted to engage in sex. The Officer testified that he then identified himself as a federal officer, took the defendant to a processing area, and issued a citation to Brannan. Officer Blanks unambiguously testified that at no time did he ask the defendant to expose himself or otherwise solicit Brannan in any way.

At the close of the Government's case-in-chief, Brannan moved for judgment of acquittal on Count One (indecent exposure) arguing that it did not allege a necessary element: that the act was committed without the consent of the victim. The district court denied the motion, concluding that the Government was not required to prove that the victim did not give consent. No further motions were made.

The court then initiated still another preliminary discussion with counsel concerning the proposed jury charge. Brannan objected to the instructions concerning indecent exposure because they did not address the matter of the victim's consent. The district court did not rule on the objection at the time. The defense then proceeded to present evidence of its own. In his defense, Brannan testified that he was at the Wildlife Refuge to exercise and take pictures of nature, and that Officer Blanks initiated a conversation with him and asked Brannan several times to expose himself, which the defendant said he did only after having been asked to do so three times by the Officer.

Based on Brannan's testimony, the Government sought permission to question Brannan about his familiarity with the Wildlife Refuge and whether on four or five occasions he had previously visited the Wildlife Refuge with the intent of engaging in causal sex. The prosecution argued that this inquiry rebutted Brannan's testimony that he had only exposed himself at Blanks' request and that it showed predisposition. After hearing the proffer out of the presence of the jury, the district court, over the defendant's objection, allowed the cross examination. The Government elicited from Brannan that, before the incident with Officer Blanks, he was aware that the Wildlife Refuge was a place to go to have casual sex, and that on four or five previous occasions he had engaged in sexual conduct at the Wildlife Refuge.

At the close of the case, Brannan did not renew his motion for judgment of acquittal.

During a final charging conference, neither side objected to the court's proposed jury instructions, which included a modified instruction on entrapment.³ Notably absent were any instructions on consent. Nor did Brannan raise any further objection to the charging document. The jury convicted the defendant on both counts. Thereafter, Brannan was sentenced to 45 days incarceration on each count to run concurrently.

This timely appeal ensued.

II.

We review the sufficiency of a charging instrument de novo. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.2002). The charging document, whether an information or grand jury indictment, "must contain the elements of the offense intended to be charged, and sufficiently apprise the defendant of what he must be prepared to...