U.S. v. Brown
| Decision Date | 29 March 1996 |
| Docket Number | No. 95-1030,95-1030 |
| Citation | 79 F.3d 1499 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gregory V. BROWN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 79--J. P. Stadtmueller, Chief Judge.
Karine Moreno-Taxman (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Erich C. Straub (argued), Milwaukee, WI, for Defendant-Appellant.
Before RIPPLE, MANION, and KANNE, Circuit Judges.
Gregory Brown was convicted of three federal offenses stemming from two separate incidents where he illegally possessed a firearm. On appeal he challenges all three convictions on the ground that he was denied his right to choice of counsel as guaranteed by the Sixth Amendment. He also attacks his conviction on the third offense alleging that his arrest and the seizure of incriminating evidence violated his Fourth Amendment rights. We find no Sixth Amendment infringement, but remand for an additional finding on the Fourth Amendment question.
At about 10:30 p.m. on November 24, 1993, Milwaukee Police Officers Rebecca Pixley and Curtis Rueda were dispatched to investigate a complaint of prowlers at 3259 North 48th Street, a high-crime area in Milwaukee. An agitated woman met them at the scene and described the prowlers as two black males about twenty-five years old, one approximately 5 feet 7 inches tall, stocky, and wearing an Army jacket, a hood, and dark clothing, and the other about the same height, thin, and wearing a black knit skull cap, black jacket, and black pants.
Meanwhile just down the street, Officers Joseph Erwin and Jesse Benitez were driving south on 48th Street with their headlights off when they noticed a black male in dark clothing sitting in the front passenger seat of a maroon station wagon parked north-bound at 3236 North 48th Street. A second black male in dark clothing (defendant Brown as it turned out) walked from the south side yard of that address, entered and started the station wagon, and drove away northbound at a normal speed with the headlights on. The officers immediately turned their squad car around and joined Officers Pixley and Rueda at the scene where they obtained a quick description of the alleged prowlers. Believing the profile matched the two men they had just observed driving away, Officers Erwin and Benitez caught up with and stopped Brown and his passenger about six blocks away. There is no indication that Brown was speeding or ever attempted to flee.
Concerned with what he might encounter, Officer Erwin yelled to Brown to shut off the car, step out, and come back to the squad car. Brown complied and Officer Erwin immediately handcuffed him, patted him down, and placed him in the squad car. While this was occurring, Officer Benitez had the passenger, Ronald Jones, step out of the car for questioning. As a safety precaution, Officer Benitez then scanned the vehicle with his flashlight for weapons. Under direct examination at an evidentiary hearing, Officer Benitez testified to what followed:
Q. And when you did that, did you observe anything?
A. Yes, I did. I seen--I observed a black bag.
Q. Was there anything about that black bag that drew your attention?
A. Yes.
Q. What was that?
A. It was partially open. Inside the black bag was a shiny chrome object, it looked like to be metal of some kind.
Q. And did you have your flashlight on this object?
A. Correct.
Q. What did you do upon seeing the shiny chrome object?
A. I thought it to be a weapon so I took another-moved in closely and took another look at it and opened the bag a little bit farther up to see what was in that, what kind of object, shiny object it was.
Q. And what did you see?
A. I seen a very large handgun.
The black bag also contained a second handgun, ammunition, handcuffs, a black knit mask, and a scanner. Officer Benitez then handcuffed Jones, placed him under arrest and put him in another squad car that had just pulled up. Officers Pixley and Rueda arrived soon thereafter. Officer Pixley testified that all these events took no more than ten minutes.
A few months later, on April 6, 1994, at approximately 4:50 a.m., Officer Andrew Jones and his partner were on a routine patrol when they observed a defective taillight on a speeding van driven by Brown (who presumably was out on bail). When Officer Jones activated his lights and siren, Brown accelerated and tried to escape, running a number of flashing red lights and a stop sign in the process. Eventually, Brown crashed the van into a fence and fled on foot with the officers, now also on foot, in pursuit. In the process of the chase which lasted for about three blocks, Brown discarded several incriminating items. First he dropped a .380 semi-automatic pistol and a gun magazine, then a pair of binoculars and a black ski mask, then black garbage bags, plastic ties, a black roll of wire, and some tape. When he was finally apprehended he still had a police scanner tuned to the channel of the police district in which the chase had occurred (so he apparently heard reports of his own chase). Other items found on him and later in the van included a pager, glasses, keys, a black bag, three dark-colored ski masks or caps, and an additional scanner also tuned to police channels.
On May 10, 1994, a grand jury indicted Brown on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and on a second count of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The indictment was for only the more recent events of April 6, 1994. Brown appeared for arraignment on May 20, 1994, where he pleaded not guilty. On May 24, 1994, the court appointed David E. Lowe as Brown's counsel.
On June 1, 1994, Brown filed a motion to suppress certain statements and evidence. After a hearing, Magistrate Judge Patricia J. Gorence recommended to the district judge that the motion be denied. Brown filed objections to the magistrate's recommendation on July 11, 1994. However, before the district judge could rule on Brown's motion, the government filed a superseding indictment for an additional count of being a felon in possession of a firearm based on the prowler incident of November 24, 1993. Trial on all three counts was set for September 19, 1994.
Tensions arose between Brown and attorney Lowe, and on July 19, 1994, Brown wrote the court requesting new counsel. In his letter and at a hearing on July 22, Brown stated several complaints, including unauthorized plea negotiations, failure to contact and call to testify certain witnesses, lack of vigor, not clearly explaining the charges, and not challenging his confinement in a detention unit housing prisoners he had informed on. The hearing testimony caused Lowe to demand in open court that Brown "stop lying." Lowe then denied the various allegations of improper representation, but he did agree that the relationship "can't be repaired" and that it would be quite difficult for him to continue as Brown's attorney. Although he wanted to withdraw, Lowe stated he would first timely file all pretrial motions. Because the trial was two months away, Lowe thought a new lawyer could properly take over the case.
Notwithstanding the obvious discord between Brown and Lowe, the magistrate denied the request. While she was troubled by the inadequate communication, she nevertheless noted the advantage of having an attorney who had already conducted an evidentiary hearing and cross-examined witnesses continue to trial. She concluded that the conflict had not degenerated to the point of a total lack of communication preventing an adequate defense. Significantly, however, she also said that if the "situation should change, you can certainly come back to the Court." These conclusions were restated in a subsequent written order which specifically indicated that under 28 U.S.C. § 636(b)(1)(A) and Local Rule 13.02 (E.D.Wis.), a "written appeal" from the order had to be filed with the district judge within ten days. No such "appeal" 1 was taken and Brown did not request substitute counsel again until after his conviction.
Later, Brown filed motions to dismiss and suppress evidence gathered during the November 24 incident on Fourth Amendment grounds and to strike portions of the indictment for surplusage. In a written memorandum, the magistrate issued recommendations that the motion to dismiss and suppress be denied, but granted the motion to strike. Brown then filed timely objections and later moved to dismiss all three counts for prosecutorial misconduct, but the district judge rejected his arguments and adopted the recommendations of the magistrate.
Brown subsequently was convicted on all counts and sentenced to 240 months imprisonment on each count, with the sentences to run concurrently. Brown's motion for judgment of acquittal, or in the alternative, for a new trial was subsequently denied. With new counsel, Brown appeals the convictions resulting from the November 24 incident, but he does not appeal the conviction for the April 6 incident for which he received the same concurrent sentence.
Brown contends that the magistrate abused her discretion by denying his timely motion for substitute counsel, thereby violating his Sixth Amendment right to choice of counsel and necessitating a new trial on all counts. He also maintains that in contravention of the Fourth Amendment, the police arrested him without probable cause during the stop on November 24, 1993 and improperly seized from his car items whose incriminating nature was not immediately apparent. According to Brown, this evidence should have been suppressed and the conviction on the third count must now be reversed. We consider each of these contentions in turn.
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