U.S. v. Brown
| Decision Date | 22 May 2001 |
| Docket Number | No. 00-1679,00-1679 |
| Citation | 250 F.3d 811 |
| Parties | (3rd Cir. 2001) THE UNITED STATES OF AMERICA, v. MELVINISHA BROWN, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Lynanne B. Wescott, Esq. (Argued), Saul Ewing, Esq., Philadelphia, PA, Counsel for Appellant.
Walter S. Batty, Jr., Esq., Carol M. Sweeney, Esq. (Argued), Office of United States Attorney, Philadelphia, PA, Counsel for Appellee.
BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.
On January 4, 2000, Appellant, Melvinisha Brown, pleaded guilty to an indictment charging her with one count of conspiracy to make false statements to a federally licensed firearms dealer, in violation of 18 U.S.C. 373 (), and one count of making false statements to a federally licensed firearms dealer, in violation of 18 U.S.C. 924(a)(1)(A) (). The United States District Court for the Eastern District of Pennsylvania sentenced her to five years probation, including twelve months of home confinement. Brown appeals, arguing that: (1) the court erroneously rejected her motion to withdraw her guilty plea; and (2) the court erroneously refused to grant a sentence reduction pursuant to U.S.S.G. 3B1.2 for her mitigating role in the offense. For the reasons that follow, we will affirm.
Brown and five co-conspirators were charged with purchasing a total of nine firearms in violation of federal statutes. Brown herself allegedly purchased two semi-automatic pistols, for which she pleaded guilty. One week before sentencing, however, she filed a motion to withdraw her guilty plea. She contended that her plea had not been knowing and voluntary because it had been based upon "inaccurate representations of available evidence." She also asserted that she was "legally innocent" because the government could not prove that she was guilty beyond a reasonable doubt.
In Brown's Supplemental Memorandum of Law in support of her motion to withdraw her guilty plea, she alleged that the government had failed to disclose information that she characterized as Brady or Giglio evidence. Specifically, Brown argued that the government's plea agreement with her co-defendant, Curtis Jordan, in which the government agreed to withdraw count six of the indictment, constituted exculpatory evidence that it was compelled to disclose pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). According to Brown, the government agreed to drop count six against Jordan because he had an alibi defense that exonerated him on that count. She claims that her plea was motivated by the belief that Jordan's testimony would be used against her at trial. Had she been aware of the undisclosed information, she may not have pleaded guilty.
The District Court conducted a hearing to consider Brown's motion to withdraw her plea. Special AUSA Sweeney testified that she did not recall Jordan's attorney ever discussing whether Jordan had an alibi defense. J.A. at 208. She stated, "I recall not hearing the word alibi until yesterday [4/19/00] when [defense counsel's] pleading called it to my attention." Id. at 209. Instead, according to Sweeney, the government decided to drop count six against Jordan because Brown had chosen not to testify against him. She testified that, "I had never disclosed to Ms. Brown or her lawyer an intention to use Mr. Jordan as a witness, so the fact that he was not a witness was not a change in circumstance." Id. at 209-10.
The District Court denied Brown's motion to withdraw her guilty plea. It held that Brown failed to make a "colorable claim of innocence." Moreover, the court held that the government's failure to disclose its decision not to charge Jordan with count six of the indictment did not constitute a Brady or Giglio violation. The court reasoned that, given the credible testimony of the prosecutor and the absence of any contrary evidence from the defense, Brown's "Jordan alibi theory" was "sheer speculation." Relying upon Smith v. Holtz, 210 F.3d 186 (3d Cir. 2000), the court held that even if Brady was implicated, no violation had occurred because Brown failed to demonstrate "a probability sufficient to undermine confidence in the outcome of this case." Thus, Brown had failed to demonstrate a fair and just reason for withdrawal of her guilty plea. She filed a motion for reconsideration, which the District Court rejected after she failed to supplement the record.
At the subsequent sentencing hearing, Brown filed a motion for a sentencing reduction pursuant to 3B1.2 of the Guidelines. She requested a downward adjustment of four levels for her minimal participation in the offense or, at the very least, a two level downward adjustment for her minor participation. The District Court denied the requested adjustment, finding that Brown knew that others were involved in a criminal enterprise, knew of its scope, and was important to its success. As such, the court assigned Brown a total offense level of ten and a criminal history category of I. The court sentenced her to five years probation, with the first twelve months to be served in home confinement subject to electronic monitoring
Brown first contends that she presented a fair and just reason for the withdrawal of her guilty plea. She asserts three primary arguments: (1) her plea was neither knowing nor voluntary because the guilty plea colloquy was misleading and deceptive; (2) the government failed to disclose exculpatory Brady information before the entry of her plea; and (3) she is legally innocent and can prevail at trial. We review the District Court's denial of Brown's motion for withdrawal of her guilty plea for an abuse of discretion. See United States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995). However, to the extent that Brown contends that the government failed to disclose Brady information, we review the court's legal conclusions de novo and its factual findings for clear error. See United States v. Ramos, 27 F.3d 65, 67 (3d Cir. 1994).
Once accepted, a guilty plea may not automatically be withdrawn at the defendant's whim. See United States v. Martinez, 785 F.2d 111 (3d Cir. 1986). Rather, a defendant must have a fair and just reason for withdrawing a plea of guilty. See FED. R. CRIM. P. 32(e). We look to three factors to evaluate a motion to withdraw: (1) whether the defendant asserts her innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea. United States v. Huff, 873 F.2d 709, 711 (3d Cir. 1989). "A shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to impose on the government the expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt by pleading guilty." United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded by statute on other grounds as stated in, United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999).
We conclude that Brown has failed to present a fair and just reason for withdrawing her guilty plea. First, her contention that the government misrepresented its evidence and secretly changed its theory of the case during the plea colloquy, thus rendering her plea involuntary and uninformed, is without merit. Brown argues that the colloquy was misleading and defective because the Change of Plea Memorandum read into the record by the government differed slightly from a previously docketed version of the document. A review of the record, however, reveals no substantive alterations. In both, the factual basis for criminal charges was based upon Brown's confession. And, as the District Court found, neither summary of facts contains any reference to the government's intention to have Jordan testify.
The only discernible difference between the two summaries is that the version read into the record specifies that Brown herself was the source of the information. This does not reflect a change in the government's theory of the case. The government had always planned to use Brown's confession, which is partially corroborated both by the ATF form that she signed when purchasing the firearms and the common scheme of the other straw purchasers.
In addition, there was nothing covert or surreptitious about the changes to the Plea Memorandum. The government announced the factual basis for Brown's offense in open court in the presence of Brown and her attorney. The District Court then asked Brown if the summary was accurate and correct. Brown replied that it was. Accordingly, we do not believe that the changes made during the plea colloquy render Brown's plea of guilty unknowing and involuntary, nor do they provide a fair and just reason for the withdrawal of her plea.
Brown's second argument in support of her request to withdraw her guilty plea fails because the government's alleged failure to disclose its decision not to charge Jordan with count six of the indictment is neither a Brady nor a Giglio violation.1 In Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Evidence is favorable to an accused under Brady " 'if it would tend to exculpate him or reduce the penalty . . . .' " Id. at 87-88, 83 S. Ct. at 1196-97. The prosecution must also disclose evidence relevant to the credibility of crucial prosecution witnesses. See Giglio, 405 U.S. at 153, 92 S. Ct. at 766.
Here, Brown has failed to demonstrate that the prosecution's...
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