U.S. v. Brown, No. 03-8027.

• Decision Date: 09 March 2005
• Docket Number: No. 03-8027.
• Citation: 400 F.3d 1242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Dean BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

400 F.3d 1242

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Dean BROWN, Defendant-Appellant.

No. 03-8027.

United States Court of Appeals, Tenth Circuit.

March 9, 2005.

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Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief), Casper, WY, for Plaintiff-Appellee.

Before SEYMOUR, HOLLOWAY and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Raymond Dean Brown was convicted after a jury trial of being a felon in possession of a firearm, unlawfully possessing a machine gun, and carrying a machine gun during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 922, 924, and 18 U.S.C. § 2. He was sentenced to 115 months for the first two counts and 360 months for the third, to be served consecutively. On appeal, Mr. Brown asserts (1) there was insufficient evidence to convict him of carrying a machine gun during and in relation to the manufacture of methamphetamine; (2) the district court's jury instructions constructively amended the indictment to permit conviction for an uncharged crime of using a gun during and in relation to the underlying drug trafficking offense; (3) the court erroneously failed to suppress, or grant a hearing regarding, statements Mr. Brown made in exchange for an implicit immunity agreement with state authorities; (4) the court erred in leading potential jurors in the Pledge of Allegiance prior to the commencement of his trial; and (5) the court failed to consider Mr. Brown's challenge to various convictions listed in his presentence report. We affirm Mr. Brown's conviction and remand with directions that the district court vacate Mr. Brown's sentence and resentence him.

I.

Mr. Brown met Kirsten Lee Worrell in August 1999, in Missouri. As Ms. Worrell later testified at trial, shortly after they met Mr. Brown showed Ms. Worrell and others his machine gun and permitted them each to fire it. Mr. Brown also mixed and cooked materials to manufacture methamphetamine at or near the trailer Ms. Worrell shared with her former boyfriend, Ricky Huggins. The parties stipulated Mr. Brown used the "anhydrous ammonia method" to manufacture methamphetamine, which involves mixing ephedrine or pseudoephedrine tablets, lithium from batteries, and anhydrous ammonia with other materials.

Ms. Worrell, Mr. Huggins, Mr. Brown, and his girlfriend subsequently traveled to California. En route, the group stayed in a trailer owned by Mitchell Thomas, which was located near Rock Springs, Wyoming. Mr. Brown and his girlfriend eventually parted ways and he continued on the journey to California with Ms. Worrell and Mr. Huggins. At some point, Ms. Worrell and Mr. Huggins also parted ways. Mr. Brown ultimately traveled back to Rock Springs with Ms. Worrell. They arrived in Wyoming by the end of October 1999, and again stayed with Mr. Thomas in his trailer. Ms. Worrell testified that Mr. Brown manufactured methamphetamine in Mr. Thomas' trailer, which Mr. Thomas verified. Mr. Thomas also reported seeing Mr. Brown's machine gun sitting by the back door of the trailer, near where Mr. Brown was cooking methamphetamine. Carmen Kittelson, an acquaintance of Mr. Thomas, testified that she visited the trailer once and discovered Mr. Brown sitting on the couch with the machine gun in his lap. Mr. Brown and Ms. Worrell eventually moved into a motor home owned by Mr. Thomas and relocated it to the nearby Flaming Gorge Reservoir area. Mr. Brown continued to manufacture methamphetamine in the motor home.

Ms. Worrell testified that Mr. Brown manufactured methamphetamine almost continuously from the time they returned to Wyoming at the end of October until they were arrested in mid-November. Ms. Worrell, Mr. Brown, and Mr. Thomas took road trips to gather supplies necessary for producing the methamphetamine, sometimes traveling out of state to collect materials. Ms. Worrell testified that Mr. Brown always had his gun with him during this time period.

While shopping for supplies at an Albertsons grocery store in Rock Springs on November 14, 1999, Mr. Brown and Ms. Worrell noticed police cars in the store parking lot. Although Mr. Brown's initial instinct was to escape via Albertsons' back exit, Ms. Worrell convinced him to return with her to her van. Once inside the van, they were surrounded by police, who were seeking Ms. Worrell on an outstanding arrest warrant. Detective Craig Jackson testified that, during the police confrontation, he saw Mr. Brown repeatedly reach down between the seats where Mr Brown's machine gun was later found in an unzipped bag and loaded with two magazines of bullets. Ms. Worrell testified that Mr. Brown had wanted to retrieve the gun and shoot his way out, but she convinced him otherwise and he surrendered.

Ms. Worrell was arrested, told the police about the methamphetamine manufacturing operation, and guided them to the motor home in Flaming Gorge. Mr. Brown was also arrested. While he was being questioned by the police, he tried to escape out of a window at the police office. He was captured after he hurt himself during the escape and was taken to the hospital, where a one-gram package of methamphetamine was recovered from his sock. Pursuant to a warrant, the police conducted a search of the Flaming Gorge location. They found coffee filters containing methamphetamine residue, acids and solvents commonly used during methamphetamine manufacture, and a fire pit containing several burned starter fluid cans and lithium battery wrappers. They also detected a strong smell of ether. Detective Jackson testified they found a cooler containing a biphase liquid, with chalky material at the bottom and clear fluid on top, that consisted of methamphetamine produced via the anhydrous ammonia method.

While state charges were pending, Mr. Brown and his lawyer met with a state prosecutor in February 2000 in order to determine whether Mr. Brown would be given consideration for providing information. According to Special Agent Dennis Claman, the state prosecutor told Mr. Brown that although any information he provided would not be used against him in state court, the state could not bind federal authorities. Before Mr. Brown's attorney advised him to say nothing more about his gun, Mr. Brown provided information to the state agents about a man in Chicago who made and sold guns similar to the one he owned. Special Agent Claman later told federal agents Mr. Brown might have information of interest to them. On March 15, 2000, Mr. Brown pled guilty in Wyoming state court to possession of a controlled substance and operation of an unlawful clandestine laboratory. He received concurrent sentences of twelve months, and three to five years.

The week following his state proceedings, a federal grand jury returned an indictment charging Mr. Brown with three weapons offenses, spanning the time period of October 1999 through November 14, 1999. Mr. Brown moved to suppress the statements he made at the February 2000 meeting with the state prosecutor, arguing that the use of those statements would violate his Wyoming immunity agreement. The district court stated in a written order that it believed Mr. Brown understood the agreement did not apply to federal authorities, but reserved making a ruling until it heard testimony from the law enforcement personnel involved. Mr. Brown did not renew his suppression motion at trial and the government presented his statements through the testimony of Special Agent Claman without any defense objection.

Before the commencement of Mr. Brown's trial, the district court asked the prospective jurors to join in reciting the Pledge of Allegiance. At the culmination of the proceedings, the court instructed the jury, without objection from the defense, that it could convict Mr. Brown if he "used or carried" a gun. The jury ultimately convicted Mr. Brown of all the charges against him.

Finally, before he was sentenced, Mr. Brown objected to the presentence report because, inter alia, he claimed that several convictions used to calculate his criminal history had been dismissed. Without addressing these objections, the district court sentenced Mr. Brown to 115 months for the first two counts and 360 months for the third count, to be served consecutively. Mr. Brown now appeals.

II.

Mr. Brown challenges the sufficiency of the evidence underlying his conviction for carrying a machine gun during and in relation to the manufacture of methamphetamine, in violation of 18 U.S.C. § 924(c). To support Mr. Brown's conviction under 18 U.S.C. § 924(c), the government had to prove beyond a reasonable doubt that (1) Mr. Brown committed the underlying drug offense, in this case "manufacturing methamphetamine," in violation of 21 U.S.C. § 841(a)(1); (2) he "carried" the machine gun; and (3) his carriage of the machine gun was "during and in relation to" his drug trafficking crime. 18 U.S.C. § 924(c).

We review the sufficiency of the evidence de novo. United States v. Castorena-Jaime, 285 F.3d 916, 933 (10th Cir.2002)." `[W]e ask only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.'" United States v. Radcliff, 331 F.3d 1153, 1157 (10th Cir.2003) (quoting United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir.2000)). We do not assess the credibility of witnesses or weigh conflicting evidence since these tasks are exclusively those of the jury. Castorena-Jaime, 285 F.3d at 933. We may reverse" `only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Haslip, 160 F.3d...