United States v. Brown

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 11, 2004
• Docket: 03-30375
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 11, 2004

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________

No. 02-30021 _____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

TIMOTHY D BROWN

Defendant - Appellant

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_____________________

No. 02-30459 _____________________

TIMOTHY D BROWN; CHRISTOPHER MICHAEL BROWN

Defendants - Appellants

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No. 02-30514 _____________________

UNITED STATES OF AMERICA Plaintiff - Appellee

KENNETH WAYNE PEARSON; TIMOTHY D BROWN; CHRISTOPHER MICHAEL BROWN

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No. 03-30375 _____________________

TIMOTHY D BROWN; ET AL

Defendants

BETTY L S BROWN; TONGULA VEAL

Claimants - Appellants _________________________________________________________________

Appeals from the United States District Court for the Western District of Louisiana No. 01-CR-10012-1 _________________________________________________________________

Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 The defendants were convicted by a jury on various offenses

related to their participation in a major drug distribution

enterprise. The indictment also included two criminal forfeiture

counts, and after trial the district court ordered the subject

property forfeited to the United States. The three criminal

defendants, together with two claimants to the forfeited

property, now appeal. For the following reasons, we affirm.

I. GENERAL BACKGROUND

These consolidated appeals arise out of the criminal trial

of Timothy D. Brown, his brother Christopher Michael Brown, and

Kenneth Wayne Pearson in the Western District of Louisiana.

Count 1 of the thirteen-count indictment charged all three men

with participation in a major drug distribution conspiracy

stretching from 1993 to 1999 and encompassing parts of Louisiana

and Texas. Other counts of the indictment charged the men with

distributing various amounts of crack cocaine on several discrete

occasions, charged Timothy Brown with money laundering offenses,

and sought the forfeiture of assets connected to the substantive

offenses. Pearson was represented by counsel, but the Browns

represented themselves at trial. After seven days of trial, the

jury found the defendants guilty on all charges, and the trial

judge later found for the government on the forfeiture counts.

The Browns were each sentenced to life imprisonment, plus

additional sentences running concurrently. Pearson, who was

3 charged only on the conspiracy count and one drug distribution

count, received a sentence of 336 months.

All three defendants appeal their convictions. Consolidated

with these appeals is the appeal of Betty L. S. Brown and Tongula

Veal, who unsuccessfully filed innocent-owner claims on some of

the forfeited property. Timothy Brown, Betty Brown, and Tongula

Veal are pro se on appeal. Facts relevant to each of the various

appellants are set forth separately below.

II. CHRISTOPHER BROWN

Christopher Brown’s sole issue on appeal is whether he

validly waived his right to the assistance of counsel at trial.

We review this question de novo. United States v. Joseph, 333

F.3d 587, 589 (5th Cir.), cert. denied, 124 S. Ct. 446 (2003).

A. Relevant facts

At his arraignment on June 7, 2001, Christopher Brown was

represented by his own retained attorney, Dele Adebamiji. A

month later, the government filed a motion to disqualify

Adebamiji on the ground that he had represented one of the

government’s cooperating witnesses in a drug prosecution stemming

from the same investigation that eventually led to Brown’s

indictment. The magistrate judge recommended that Adebamiji be

disqualified and that the defendant be ordered to retain new

counsel within twenty days of the ruling. The district judge

adopted this recommendation on September 21, 2001.

4 The defendant appeared before the magistrate judge on

November 7 without a lawyer and said that he was unaware that he

had been ordered to obtain new counsel. The magistrate judge

told him that he could apply for court-appointed counsel if he

could no longer afford his own. The magistrate judge then

ordered Brown to inform the court, within twenty days, of whether

he had obtained new counsel or instead intended to represent

himself.

The defendant appeared in court again on December 13. He

informed the magistrate judge that he wished to file a motion to

proceed pro se. The motion stated that Adebamiji had been

“unjustly disqualified” and that any court-appointed lawyer would

be “working with the government and not in the defendant’s best

interest.” Brown reiterated this suspicion in open court. The

magistrate judge told him that a court-appointed lawyer would be

chosen by the public defender’s office, which was separate from

the prosecution, but Brown repeated that he did not want a court-

appointed lawyer.

The magistrate judge then engaged Brown in a lengthy

colloquy in which the court inquired into Brown’s mental health

and education,1 explained the charges and possible sentences

Brown would face, told him about the many advantages a lawyer

could offer, and warned that Brown would be held to the same

1 Brown said that he had graduated from high school and claimed to have attended a semester of college. He said that he could read and write “very well” and had no mental problems.

5 rules as other parties. Brown admitted at one point during the

exchange that he did not know what “voir dire” meant. The

magistrate judge asked if Brown was interested in having stand-by

counsel appointed, but Brown said that he was not. After

recommending to Brown once more that he not represent himself,

the magistrate judge stated that he felt Brown had made a

knowing, intelligent, and voluntary decision waive his right to

counsel.

After resolving a few pretrial motions filed by Christopher

and his brother Timothy, who was also proceeding pro se, the case

proceeded to trial on January 15.2 While Christopher’s

performance was certainly inferior to that of a skilled lawyer,

he was not passive. He made a brief opening statement at the

beginning of the trial, and most of the government’s witnesses

were cross-examined by both Browns, though Timothy’s cross-

examinations were generally longer. Some of Christopher’s cross-

examinations seriously damaged his own case: for instance, he

elicited testimony that implicated the Browns in a killing and

other crimes about which the jury would not otherwise have

learned. The Browns called over a dozen witnesses in their case,

with most of the direct examinations being performed by Timothy.3

In his own testimony during the defense’s case, Christopher made

2 This opinion will at points refer to the defendants by their first names when useful to prevent confusion. 3 Pearson, who was represented by counsel, did not call any witnesses.

6 statements about past run-ins with the police that opened the

door to cross-examination on numerous prior arrests. Christopher

delivered a closing argument, but he may have cut his argument

short in the mistaken belief that his brother would be able to

use any leftover time.

On appeal, Christopher Brown is now represented by appointed

B. Analysis

The Sixth Amendment gives a criminal defendant the right to

conduct his or her own defense, so long as the accused’s waiver

of the right to counsel is knowing and intelligent. Faretta v.

California, 422 U.S. 806, 835-36 (1975). For a defendant who

will stand trial, this court has required the trial court to

engage in a colloquy with the accused in which the judge warns of

the dangers of self-representation. See United States v. Davis,

269 F.3d 514, 518-19 (5th Cir. 2001). In assessing whether the

accused has made a knowing and intelligent waiver, the court must

consider all of the circumstances of the individual case,

including

the defendant’s age and education, and other background, experience, and conduct. The court must ensure that the waiver is not the result of coercion or mistreatment of the defendant, and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.

Id. at 518 (quoting United States v. Martin, 790 F.2d 1215, 1218

(5th Cir. 1986)).

7 In this case, the magistrate judge engaged in a colloquy

with the defendant of the type required by our precedents. The

magistrate judge told Brown about the charges that he faced,

about the possible sentences, and about the disadvantages of

self-representation. The magistrate judge determined that the

defendant was mentally competent and had graduated from high

school. During the exchange, the defendant repeatedly indicated

that he understood the magistrate judge’s warnings, and he

unequivocally stated that he wished to represent himself.

While Brown does not dispute that the magistrate judge gave

him numerous warnings and engaged him in a colloquy that might

ordinarily suffice to demonstrate the validity of his decision to

proceed pro se, he contends that his situation possesses several

special features that distinguish it from the usual case. First,

he contends that his inability to understand why the government

disqualified his chosen lawyer, together with his suspicions

about appointed counsel, effectively coerced him into

representing himself.4 Second, he argues that his lack of basic

legal skills shows that his waiver was not knowing and

4 Brown points in particular to the following exchange, which occurred in a pretrial hearing concerning whether the government had provided proper discovery: TIMOTHY BROWN: I wasn’t provided a copy [of the court’s discovery order]. THE COURT: Well, your lawyer was, Mr. Brown. CHRISTOPHER BROWN: You fired my lawyer. THE COURT: I sure did. Although not reproduced in Brown’s brief, the magistrate judge followed up one line later with, “And for good cause . . .”

8 intelligent. Third, he points out that some courts have found

that the absence of stand-by counsel undermines the validity of a

waiver; if stand-by counsel had been available, he contends, the

stand-by lawyer might have averted some of his more serious

mistakes and could have prevented him from relying too heavily on

his co-defendant brother Timothy, who was more culpable. Upon

consideration, these contentions do not persuade us that the

district court erred.

Regarding the first argument, it is true that Brown may well

have thought that self-representation was the only way to ensure

a zealous defense, given the disqualification of his first lawyer

and his mistrust of court-appointed counsel. Brown does not

contend that Adebamiji’s disqualification was improper, however,

and he has not directed us to any cases establishing that a

defendant’s suspicion of court-appointed counsel makes his waiver

of the right to counsel into the product of “coercion.” In fact,

the courts not infrequently encounter defendants who object to

court-appointed counsel based on the erroneous belief that such

an attorney would be in league with the prosecution. See, e.g.,

Wise v. Bowersox, 136 F.3d 1197, 1202 (8th Cir. 1998). The

magistrate judge tried to explain that an appointed lawyer would

be a public defender or a private lawyer not associated with the

prosecution, but Brown persisted in his rejection of appointed

counsel. While Brown’s suspicions were to our mind ill-founded,

there is no suggestion here that Brown’s suspicions were the

9 product of any sort of mental incompetence. Given Brown’s

repeated assertions of his desire to represent himself, it would

have been more coercive, and possibly violative of Faretta, if

the trial judge had rejected Brown’s decision and compelled him

to accept the services of an unwanted appointed attorney. “To

force a lawyer on a defendant can only lead him to believe that

the law contrives against him.” Faretta, 422 U.S. at 834.

Brown’s dismal performance at trial, recounted in some

detail in his appellate brief, reveals quite glaringly that his

trial would almost certainly have proceeded better had he been

represented by a proper lawyer. Nevertheless, this does not mean

that he was unable to make a knowing and intelligent waiver. It

is instructive that the trial judge in Faretta had refused to let

the defendant represent himself because the defendant gave

unsatisfactory answers to the judge’s questions concerning the

hearsay rule and voir dire procedures. Id. at 808-10 & n.3.

The Supreme Court, however, was uninterested in “how well or

poorly Faretta had mastered the intricacies of” those rules,

concluding that “technical legal knowledge, as such, [is] not

relevant to an assessment of his knowing exercise of the right to

defend himself.” Id. at 836. Brown was a poor lawyer, but a

defendant who has chosen self-representation cannot thereafter

claim that the quality of his or her own defense amounts to a

denial of effective assistance of counsel. Id. at 834 n.46.

10 Brown asserts that his waiver of the right to counsel was

suspect because he often relied on his brother Timothy. Timothy

was alleged to be the head of the drug ring and was therefore

more culpable than Christopher. Because of the two defendants’

potentially conflicting interests, joint representation might

have been inappropriate, if undertaken by an actual attorney.

But any impropriety arising out of Timothy’s participation in

Christopher’s case would simply go to the effectiveness of

Christopher’s defense. As stated above, that type of claim is

not available to defendants who proceed pro se at trial.

Brown is correct that some of the more disastrous aspects of

his trial performance might have been averted if stand-by counsel

had been appointed. Stand-by counsel can be appointed even over

the defendant’s objection. McKaskle v. Wiggins, 465 U.S. 168,

184 (1984). Some courts have indicated, as Brown points out,

that the availability of stand-by counsel is a factor to be

considered in determining whether the defendant’s waiver was

knowing and intelligent. See United States v. Sandles, 23 F.3d

1121, 1128 (7th Cir. 1994); Strozier v. Newsome, 871 F.2d 995,

998 (11th Cir. 1989). While this circuit has recognized that

appointment of stand-by counsel is the “preferred practice,”

McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985), we

have not explicitly considered it as a factor that can undermine

the validity of a waiver. Further, the Constitution does not

require the appointment of stand-by counsel even when it is

11 requested, id. at 1178; see also United States v. Bova, 350 F.3d

224, 226-27 (1st Cir. 2003), and here Brown explicitly refused

it.

In sum, having considered all of the relevant circumstances,

we conclude that Christopher Brown’s waiver of the right to

counsel was valid under our precedents.

III. TIMOTHY BROWN

Timothy Brown raises a number of points of error and also

joins in those raised by his co-defendants.

A. Pre-indictment and post-indictment delay

Brown alleges constitutional and statutory violations

traceable to pre-indictment and post-indictment delay. In

particular, he argues first that the government violated his

right to due process by waiting until 2001 to indict him for a

conspiracy that stretched back to 1993. Brown asserts that

because the government delayed for so long, several alibi

witnesses could not be located, two trial witnesses could no

longer remember events from 1995 that presumably would have been

helpful to Brown’s case, and pieces of exculpatory evidence

(namely security tapes and financial records) have been lost.

Brown also argues that the government violated the Speedy

Trial Act and the Sixth Amendment through post-indictment delay.

Brown points out that he was indicted and made his initial court

appearance in May 2001 but was not tried until January 15,

12 2002——a period that far exceeds the Act’s usual seventy-day

limit.

Both of these arguments were raised and rejected in the

district court. We review the district court’s legal conclusions

de novo and its factual determinations for clear error. United

States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002), cert.

denied, 123 S. Ct. 1956 (2003).

1. Due process/pre-indictment delay

Pre-indictment delay can in some cases deprive a defendant

of due process of law. See United States v. Lovasco, 431 U.S.

783 (1977). This court set out the required showing to establish

such a claim in United States v. Crouch, 84 F.3d 1497, 1514 (5th

Cir. 1996) (en banc):

[F]or preindictment delay to violate the due process clause it must not only cause the accused substantial, actual prejudice, but the delay must also have been intentionally undertaken by the government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other impermissible, bad faith purpose.

Under Crouch, then, the claim has two essential components: the

delay must cause prejudice and it must have been undertaken for

an improper purpose. The defendant bears the burden of proving

both. United States v. Amuny, 767 F.2d 1113, 1119-20 (5th Cir.

1985).

Regarding the first prong, we have held that “[v]ague

assertions of lost witnesses, faded memories, or misplaced

documents are insufficient” to demonstrate actual prejudice. Id.

13 at 1515 (quoting United States v. Beszborn, 21 F.3d 62, 67 (5th

Cir. 1994) (alteration in original)). In his appellate brief,

Brown does name specific persons and pieces of evidence that he

claims were lost. Even if those assertions were sufficiently

substantiated, however, at no point in Brown’s submissions to

this court or the district court has come close to satisfying

Crouch’s second prong. Brown has accused the government of

tactical delay, but he has never offered any elaboration or

evidentiary substantiation for his bare assertion. We cannot

presume that a delay was undertaken for improper reasons, and

prosecutors are not constitutionally required to bring charges as

soon as they have enough proof to convict, especially in wide-

ranging investigations involving multiple defendants. See

Lovasco, 431 U.S. at 792-95. “[T]o prosecute a defendant

following investigative delay does not deprive him of due

process, even if his defense might have been somewhat prejudiced

by the lapse of time.” Id. at 796.

2. Speedy Trial Act

Under the federal Speedy Trial Act, a criminal defendant’s

trial “shall commence within seventy days from” the date of the

indictment or the defendant’s initial court appearance, whichever

is later. 18 U.S.C. § 3161(c)(1) (2000). The seventy-day limit

is, however, subject to a list of exemptions, including the time

that elapses between the filing of a motion and the hearing on

that motion as well as a period (not to exceed thirty days)

14 during which a matter is under advisement by the district court.

Id. § 3161(h)(1).

The vast majority of the 229 days between Brown’s initial

appearance and his trial were excludable by reason of the

pendency of various motions, many of which were filed by Brown

himself. Based on our review of the district court’s docket

sheet, it appears that 38 nonexcludable days elapsed, a figure

comfortably within the statutory limit.

3. Sixth Amendment

Brown also appears to assert that the post-indictment delay

violated his constitutional, as opposed to statutory, right to a

speedy trial. As a recent decision observed, “[i]t will be the

unusual case . . . where the time limits under the Speedy Trial

Act have been satisfied but the right to a speedy trial under the

Sixth Amendment has been violated.” Bieganowski, 313 F.3d at

284. In evaluating the constitutional claim, we consider four

factors: (1) the length of the delay, (2) the reason for the

delay, (3) the defendant’s diligence in asserting his Sixth

Amendment right, and (4) prejudice to the defendant resulting

from the delay. United States v. Cardona, 302 F.3d 494, 496 (5th

Cir. 2002) (citing Barker v. Wingo, 407 U.S. 514, 530-33 (1972)).

We generally need not consider factors two, three, and four if

the delay is less than a year. United States v. Bergfeld, 280

F.3d 486, 488 (5th Cir. 2002). Here, Brown was indicted and

initially appeared in May 2001 and was tried beginning in January

15 2002. Even were this a sufficient delay to trigger the right,

the delay was attributable to the complexity of the case and the

numerous pretrial motions, many of which were filed by Brown.

This claim is accordingly without merit.

B. Jurisdictional challenges

Brown contends that the federal government is without

jurisdiction to criminalize his conduct because the federal

government lacks a general police power. According to Brown, the

federal government’s power to regulate private conduct is largely

limited to activities that occur on federal property. Brown is

correct that the federal government lacks a general police power,

but his argument overlooks the Commerce Clause, which permits

Congress to punish the drug offenses charged here on the ground

that they affect interstate commerce, even without proving that

the particular acts at issue affected interstate commerce. See,

e.g., United States v. Lopez, 459 F.2d 949, 950-53 (5th Cir.

1972) (holding that 21 U.S.C. §§ 841 and 846 are constitutional).

The Supreme Court’s recent federalism decisions have not changed

this result. See United States v. Brown, 276 F.3d 211, 214-15

(6th Cir. 2002); United States v. Kallestad, 236 F.3d 225, 230 &

n.29 (5th Cir. 2000).

Brown also argues that the district court never established

its jurisdiction over the case, but this argument is likewise

without merit. The court had jurisdiction by virtue of 18 U.S.C.

§ 3231, which confers jurisdiction over “all offenses against the

16 laws of the United States.” The indictment charged Brown with

such offenses. The underlying drug statutes do not include

elements that require the government to prove jurisdictional

facts, such as a connection with interstate commerce.

C. Waiver of right to counsel

In addition to raising issues of his own, Timothy Brown

joins in the arguments raised by his co-defendants. These shared

claims fail for the same reasons discussed elsewhere in this

opinion. The only shared issue that requires separate comment as

applied to Timothy Brown is the issue whether he made a valid

waiver of his right to counsel.

Timothy Brown appeared at his arraignment in June 2001

represented by retained counsel. Over the course of the next few

months, his lawyer filed several motions related to discovery and

scheduling. In September 2001, Brown filed a motion to proceed

pro se, and his lawyer filed a motion to be removed as counsel of

record. At the time, trial was scheduled for January 2002.

Brown appeared before the magistrate judge on October 25,

2001, for a hearing on his motion to proceed pro se, as well as

hearings on other motions he had filed. The magistrate judge

noted that he had previously determined that Brown did not

financially qualify for appointment of counsel. The magistrate

judge told Brown that defendants have the constitutional right to

represent themselves, but that the magistrate judge had to ensure

that Brown was making a knowing and intelligent decision to do

17 so. At this point Brown stated that he eventually planned to

hire a new attorney, but that he wished to represent himself in

the meantime. The magistrate judge offered to postpone the

hearing on Brown’s several pending motions until he hired a new

lawyer, but Brown said that he wanted to argue the motions

himself. The magistrate judge warned Brown that while there was

no deadline for Brown to hire a new lawyer, he should “do that

immediately if you’re going to do it.”

Recognizing that Brown might still hire a lawyer to

represent him at trial, the magistrate judge nonetheless engaged

Brown in a full colloquy very similar to that described earlier

with respect to his brother Christopher. When asked about his

education, Brown claimed to have graduated from college (although

the pretrial services report indicated that there was no record

of him attending college). Brown also said that he had

represented himself before, winning two out of three cases. The

magistrate judge told Brown that stand-by counsel would not be

provided because Brown did not financially qualify for any court-

appointed attorney. The magistrate judge concluded by telling

Brown to inform the court if and when he hired a new lawyer.

Brown filed a number of pretrial motions and argued them to

the court. He showed an understanding of basic criminal

procedure and terminology; for example, he complained that the

government had failed to turn over Brady and Jencks material.

18 Brown never hired a new lawyer or asked to do so but instead

represented himself throughout the trial.

Timothy’s colloquy with the magistrate judge was

substantially the same as Christopher’s colloquy, and it likewise

satisfies the applicable standards. The factors that complicated

the analysis of Christopher’s case are not present with respect

to Timothy. His waiver of the right to counsel was a fortiori

valid.

D. Other issues

Brown additionally alludes to some dozen purported defects

in his trial, devoting a sentence or two to each of them. These

same complaints were raised in the district court. Even allowing

for the liberality with which we construe pro se briefs, see,

e.g., United States v. Glinsey, 209 F.3d 386, 392 n.4 (5th Cir.

2000), some of these claims are presented too obscurely to permit

a proper evaluation.5 To the extent that we can evaluate the

arguments, none of them presents reversible error based on the

record before us. We make the following observations regarding

what appear to be the three strongest arguments that are fairly

discernable from the briefs and the record.

5 Brown’s brief asserts, for instance, that the government held a press conference that generated prejudicial pretrial publicity. The allegedly offending statements and news reports are not part of the record, however, so it is impossible for us to evaluate Brown’s claim. Similarly, while Brown complains that the government failed to make required discovery, his appellate brief does not identify which items used at trial should have been disclosed or mount any argument as to those items.

19 First, Brown asserts that the prosecutor misrepresented the

testimony of Bertha Woodfox, a cooperating witness. During

closing arguments, the prosecutor said that Woodfox testified

that she had seen Brown with drugs. Brown made a contemporaneous

objection to that characterization of the evidence, which was

overruled. Having examined Woodfox’s testimony, it appears that

Woodfox in fact testified on cross-examination that she had never

actually seen either of the Browns with drugs. Nonetheless,

Woodfox did testify that she arranged drug deals for the Browns

and transported money for them, and other witnesses testified

that they purchased drugs from the Browns. Given those

circumstances, the prosecutor’s misstatement in no way casts

doubt on the correctness of the verdict. Since the remarks did

not have such an effect, there is no basis for reversal. See

United States v. Kelley, 981 F.2d 1464, 1473 (5th Cir. 1993).

Second, Brown contends that one of the jurors was biased

against him, as reflected in a racist letter to the editor that

appeared in the local paper. The court held a hearing at which

the juror and a newspaper employee testified, and the court

determined that there was clear and convincing evidence that the

juror was not the author of the letter. This finding of fact is

not clearly erroneous.

Third, Brown argues that the government acted in bad faith

in putting on the testimony of Chadrick McNeal, who (according to

Brown) became a police informant in order to get revenge against

20 Brown. On direct examination, the government elicited testimony

that McNeal was a paid informant. On cross-examination,

Pearson’s lawyer and the Browns inquired in some detail into

McNeal’s motives for becoming an informant. We see no

prosecutorial misconduct in presenting the testimony. It is

within the jury’s province to make determinations regarding the

credibility of witnesses, and the jury was entitled to discount

McNeal’s testimony if it so chose.

IV. KENNETH PEARSON

A. Giglio/Napue violation

Pearson’s first argument on appeal is that the government

deprived him of his right to due process when it allowed its

witnesses to materially misrepresent the terms of their plea

agreements. We review this matter de novo.6

1. Relevant facts

The government’s case featured dozens of witnesses,

including fifteen cooperating felons. Pearson asserts that nine

of those cooperating witnesses misrepresented the terms of their

plea agreements with the U.S. Attorney’s Office. The nine

written plea agreements differ in various ways; all but one of

them, however, refer to the possibility of “substantial

6 Pearson argues that de novo review rather than plain error review is proper even though the matter was not raised below. The government concedes this point, so we exercise de novo review.

21 assistance” sentence departures.7 These agreements carefully

state that the government makes no “promises” regarding sentence

reductions. The agreements were made available to the defense at

trial.

The government began the direct examination of most (but not

all) of its cooperating witnesses by eliciting testimony that the

witness had pleaded guilty and agreed to testify as part of his

plea agreement. In some cases the direct examination did not

reveal that the witness could receive a reduced sentence for

testifying. In a few cases the only question related to the

issue of the witness’s reasons for testifying was a question

whether the witness had been “promised anything for testifying,”

which the witnesses answered “no.” The government asked other

witnesses more open-ended questions about their understanding of

whether they would receive anything for their testimony; these

witnesses all said that “no promises” had been made, but some of

them did mention the possibility or hope of receiving more

lenient sentences. On cross-examination, much of which was

conducted by the Brown brothers, the nature of the witnesses’

plea agreements was explored in some detail. Most of the

7 Earl Veal’s plea agreement does not contain any provisions referring to cooperation or substantial assistance. We note that while the plea agreements are attached as an appendix to the government’s appellate brief, only one of them was put into the record in the district court. Nonetheless, as both sides seem content to proceed on this basis, we shall assume that the attachments to the government’s brief are accurate representations of the cooperating witnesses’ plea agreements.

22 witnesses admitted that they hoped to receive reduced sentences

for testifying.

Pearson’s brief discusses in some detail the testimony of

each of the nine witnesses who, to various degrees, allegedly

misrepresented the nature of their federal plea agreements, but

only three of those nine witnesses provided testimony that

incriminated Pearson (as opposed to his co-defendants). We will

therefore summarize in relevant part the testimony of those three

witnesses.

The first of them, Sedrick Jackson, provided rather weak

testimony against Pearson. Jackson assumed that Pearson bought

crack from the Browns because he saw Pearson leave the Browns’

store (which operated as a front for the drug enterprise) with

the same kind of bag in which Jackson received his crack. He

also testified that Timothy Brown told him that Pearson sometimes

caused problems by not paying all of the money that he was

supposed to pay. Earlier, at the beginning of the direct

examination, the government had elicited testimony that Jackson

had agreed to cooperate and that “[i]t’s a possibility that I may

get a downward departure, but nothing was promised to me, as long

as I give substantial assistance.” The prosecutor asked Jackson

if he knew who would make the final decision on whether his

sentence would be reduced, and Jackson said he believed it was

the judge.

23 Thurston Washington’s testimony began with an admission that

he had entered into a plea agreement. When the prosecutor asked

him about his understanding of his agreement, he stated that he

would probably get the maximum if he did not testify. When asked

whether the judge had the final say on his sentence, he said yes.

Washington then proceeded to testify that he sold crack for the

Browns for about a year. He also testified that he saw Pearson

with crack and that Pearson told him that it came from the

Browns.

The third witness who both incriminated Pearson and

allegedly misrepresented his federal plea agreement was Derrick

Ross, who testified that he bought crack from Pearson nine or ten

times. The direct examination of Ross spans only a few

transcript pages, and the only reference to his status as a

cooperating witness was the question, “Has anyone promised you

anything to get you [to] testify today?” Ross answered, “No,

sir.” That he was testifying pursuant to a plea agreement was

therefore not revealed on direct examination (though it was

explored on cross-examination).

Several other felons also incriminated Pearson, but he does

not argue on appeal that the government misrepresented any plea

agreement they might have had. At the close of the case, the

jury instructions warned the jury to be especially careful in

evaluating the credibility of cooperating witnesses.

2. Analysis

24 The Due Process Clause forbids the government from knowingly

using or failing to correct false testimony, including testimony

about the nature or existence of a cooperating witness’s plea

agreement. Giglio v. United States, 405 U.S. 150, 153-54 (1972);

Napue v. Illinois, 360 U.S. 264, 269 (1959); Unites States v.

Mason, 293 F.3d 826, 828 (5th Cir. 2002). To prove a violation,

the criminal defendant must show that (1) a witness testified

falsely, (2) the government knew that the testimony was false,

and (3) the testimony was material. Mason, 293 F.3d at 828.

Testimony is “material” in this context, and thus a new trial is

required, “if the false testimony could . . . in any reasonable

likelihood have affected the judgment of the jury.” Giglio, 405

U.S. at 154 (internal quotation marks omitted and alteration in

original); see also Barrientes v. Johnson, 221 F.3d 741, 753 (5th

Cir. 2000).8

Pearson’s argument on appeal posits two distinct ways in

which the government allegedly misled the jury. The first

relates to the terms of the written plea agreements themselves.

The cooperating witnesses’ plea agreements are carefully crafted

to state that the government may, but is not required to, file a

8 The government’s brief contends that the standard for materiality is whether there is a “reasonable probability that the result would have been different,” which in turn means “a probability sufficient to undermine confidence in the outcome.” Pearson is correct, however, that Giglio’s “any reasonable likelihood” language imposes a somewhat lower burden. See Barrientes, 221 F.3d at 756 (comparing the different formulations). In any event, the difference between the formulations is irrelevant in this case.

25 motion for a substantial assistance sentence departure or

reduction; the agreements also warn that the sentencing judge

ultimately sets the sentence. Pearson claims that the written

agreements themselves misrepresent the true bargain struck with

the witnesses, since cooperating witnesses virtually always

receive the anticipated reductions, as did the cooperating

witnesses in this case. The carefully crafted hedges and

qualifications in the agreements, according to Pearson, merely

allow the government to deny what is in reality a straightforward

promise of leniency in exchange for favorable testimony.

Leaving aside the asserted defects in the written agreements

themselves, Pearson also argues that the government’s examination

of the witnesses gave a misleading impression of their reasons

for testifying. Most of the witnesses (but not Ross) said on

direct examination that they were testifying as required under a

plea agreement, but they also testified in lockstep that they had

not been “promised” anything for their testimony. Pearson claims

that this way of answering the question——often suggested by the

prosecutor’s arguably leading questions——gave the jury a mistaken

impression of what the witnesses really stood to gain by

testifying against Pearson and his associates.

We have little difficulty in rejecting the first part of

Pearson’s argument, namely that the language of the plea

agreements themselves misstates the true deal between the

government and the cooperating defendant. As the government

26 explains, the careful “no promises” language of the written plea

agreements is itself a response to cases holding that agreements

without such hedges strip the government of its discretion over

whether to request a downward departure. See, e.g., United

States v. Watson, 988 F.2d 544, 548, 551-53 (5th Cir. 1993);

United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir. 1991);

see also United States v. Garcia-Bonilla, 11 F.3d 45, 46-47 (5th

Cir. 1993) (contrasting such agreements with an agreement, like

the ones here, that reserves the government’s discretion). The

language reserving the government’s discretion is therefore both

appropriate and accurate, even though the government regularly

requests a downward departure when a defendant renders

substantial assistance.

Pearson’s second type of argument, namely that the

government allowed the witnesses to misrepresent their plea

agreements, is stronger. To be sure, we would not require the

prosecution to pound away at the credibility of its own

cooperating witness by exploring all of the witness’s motives to

curry favor with the government. The testimony of witness Ross

is quite troubling, however, because the only question remotely

touching on that subject was a question whether he had been

promised anything to testify, which Ross answered in the

negative. This tended to convey an improper and misleading

impression that Ross was wholly disinterested. See United States

v. Barham, 595 F.2d 231, 239-41 (5th Cir. 1979) (criticizing a

27 similar style of questioning). His plea agreement stated that

the government may, but was not required to, file a motion for a

downward departure if Ross gave substantial assistance; the

agreement explicitly stated that no promises were made in that

regard. To that extent, Ross’s statement that he had been

promised nothing was at least technically accurate. The

agreement does state, however, that “the United States will

advise the Court of any assistance provided by the Defendant.”

Thus, although Ross certainly was not promised a downward

departure, or even a motion for one, he was at least promised

something. To that extent, his testimony on direct was not only

misleading but false as well, if only in a relatively small way.9

Ross’s testimony differs from the testimony of witnesses Jackson

and Washington, whose testimony on direct examination was

technically accurate and did not misleadingly suggest that they

were wholly disinterested.

9 Similarly false was witness Christopher Larry’s negative response to the question whether he had been promised anything for testifying. But unlike the case with Ross, Larry’s direct testimony at least revealed that he was testifying pursuant to a plea agreement. His plea agreement said that the government would inform the court of any assistance and would consider filing a motion to reduce his sentence. Larry’s plea agreement was explored in some detail on cross-examination, and it was put into evidence. Also false was a statement made during cross-examination by witness Darnell Atkins, who admitted on direct examination that he was cooperating pursuant to a plea agreement but then stated at one point during cross-examination that the government would not even consider a sentence reduction if he cooperated. Larry and Atkins did not offer testimony against Pearson, only against the Browns.

28 The existence and terms of Ross’s plea agreement were

explored in some detail on cross-examination. To be sure, this

does not excuse the government from its affirmative duty not to

let its witnesses testify falsely; it is not the defendant’s job

to correct the testimony. Mason, 293 F.3d at 829; United States

v. Sanfilippo, 564 F.2d 176, 178 (5th Cir. 1977). Nonetheless,

since there is no Giglio violation unless the testimony was

material——i.e., unless it could “in any reasonable likelihood

have affected the judgment of the jury”——revelations on cross-

examination can dispel any incorrect impression given to the jury

by the testimony on direct. It is therefore relevant that

Pearson’s lawyer elicited that Ross had a plea agreement and that

he could receive a sentence reduction for substantial assistance.

Indeed, the motives of all nine of the cooperating witnesses

highlighted in Pearson’s brief were explored in some detail in

cross-examination. (For those witnesses who did not testify

against Pearson, this cross-examination was conducted by the

Browns, who were very persistent in this regard.) Thus, whatever

the shortcomings in the direct examinations, the overall effect

of the testimony was not materially misleading to the jury.

A significant feature of Giglio and Napue is that in those

cases the prosecution’s case hinged largely on the testimony of a

single witness whose arrangement with the government was hidden

from the jury. Since the key witnesses in those cases testified

falsely as to their agreements with the government, the jury’s

29 verdict was thrown into doubt. Here, there was testimony against

Pearson from at least seven witnesses. Pearson’s claims of

misrepresentation are directed at only three of them, and we have

concluded that cross-examination repaired the defects in the

direct examinations. Pearson correctly points out that almost

all of the evidence against him came from convicted felons and

paid informants, but this was a matter for the jury to weigh. It

is clear that the jury, through a combination of the trial

testimony and its own common sense, realized that all of the

cooperating witnesses had substantial motives to curry favor with

the prosecution. These witnesses’ motives were brought to the

jurors’ attention again in the jury instructions, in which the

judge warned the jury to take special care when evaluating the

credibility of cooperating witnesses. In sum, while there was

some false testimony offered in this case, we are convinced that

there is no reasonable likelihood that it procured Pearson’s

conviction.10

B. Apprendi issues

Pearson raises two arguments based on the reasoning of the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000). First, he argues that the drug quantity used to

determine his sentence must be found by a jury rather than by the

10 We are even more convinced of this conclusion regarding Timothy Brown, who adopts Pearson’s arguments on this issue. Although there was some testimony against Brown that we would fault, see supra note 9, the case against Brown was overwhelming and included testimony from people other than cooperating felons.

30 sentencing judge, even though the sentence Pearson received was

below the statutory maximum. Second, he contends that 21 U.S.C.

§ 841(b) is unconstitutional. Pearson raises these arguments

here, as he did at trial,11 solely to preserve the issues for

possible further review; he admits that both arguments are

foreclosed by circuit precedent. See, e.g., United States v.

McIntosh, 280 F.3d 479, 484 (5th Cir. 2002) (“[N]o Apprendi

violation occurs where a fact used in sentencing that was not

alleged in an indictment and proved to a jury does not increase

the sentence beyond the statutory maximum.”); United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2001) (rejecting a

constitutional challenge to 21 U.S.C. § 841(b)).

V. FORFEITURE ISSUES

Betty Brown is the Brown brothers’ mother, and Tongula Veal

is Timothy’s common-law wife. Their appeal challenges the

forfeiture of some of the property connected to the Browns’ drug

enterprise. To the extent that their argument involves the

construction and constitutionality of the relevant federal

statutes, our review is de novo. United States v. Perez-Macias,

335 F.3d 421, 425 (5th Cir.), cert. denied, 124 S. Ct. 495

(2003); United States v. Rasco, 123 F.3d 222, 226 (5th Cir.

1997). To the extent that they would have the district court

excuse an untimely filing or permit an amended claim, our review

11 Timothy Brown, who joins in the Apprendi arguments, did not raise them in the district court.

31 is for abuse of discretion. Cf. S.W. Bell Tel. Co. v. El Paso,

346 F.3d 541, 546 (5th Cir. 2003); Coburn Supply Co. v. Kohler

Co., 342 F.3d 372, 376 (5th Cir. 2003).

The indictment included criminal forfeiture counts under 21

U.S.C. § 853 (criminal forfeiture of proceeds of drug crimes) and

18 U.S.C. § 982 (criminal forfeiture of property related to,

inter alia, money laundering offenses). After considering the

jury’s verdict and the evidence at trial, the district judge

found in the government’s favor on the forfeiture counts on

January 25, 2002. An initial order of forfeiture——encompassing

$800,000 in cash, two parcels of real property, and three

cars——was entered on February 4. The court’s order further

provided that any third parties claiming an interest in the

property must file a petition within thirty days of the date of

the final published notice of forfeiture or the date that the

party received actual notice, whichever came earlier. A notice

of the order of forfeiture was sent to Betty Brown by certified

mail on February 6, and she received it on February 8. Notice of

the order of forfeiture was also published in the local newspaper

three times, beginning on February 15 and ending on March 1.

On February 27, Brown and Veal filed separate innocent-owner

petitions on behalf of BLSB, Inc. and WWTO, Inc., respectively.

BLSB’s filing concerned one of the parcels of real property and

two cars; WWTO’s filing concerned one car. The petitions claimed

32 that the corporations were the “100% lawful owner[s]” of the

subject property. Each woman signed her petition on the

corporation’s behalf as “President and Sole shareholder.” The

district court, in an order dated March 5, refused to entertain

these petitions on the grounds that a corporation can only appear

through a licensed attorney. See S.W. Express Co. v. ICC, 670

F.2d 53, 55-56 (5th Cir. 1982). On March 14, Brown and Veal

jointly filed a document styled “Request for Extension of Time to

Employ Counsel.” On March 19, the district judge entered a

handwritten order stating, in full: “No order is required for the

corporations to engage the services of an attorney.”

Brown and Veal filed new innocent-owner petitions over seven

months later, on October 30, but this time in their individual

capacities. The women claimed to be the “100% lawful owner[s]”

of the subject property and stated that, “Property was acquired

lawfully through corporation owned solely by claimant and all

interest in property is vested [in] claimant.” The petitions

were accompanied by certificates of dissolution for BLSB and

WWTO, also dated October 30. The government responded to the new

petitions and, on March 24, 2002, the district court denied

Brown’s and Veal’s October 30 petitions as untimely, since they

were filed well over thirty days after notice of the forfeiture.

Proceeding pro se on appeal, Brown and Veal argue that the

October 30 filings, in which the women asserted claims to the

33 property as individuals, operated as “amendments” to their

corporations’ timely February 27 filings. The later filings

therefore relate back to the earlier date and are thus also

timely, they contend.

According to the applicable forfeiture statute, a person

claiming a legal interest in property that has been ordered

forfeited “may, within thirty days of the final publication of

notice or his receipt of notice . . . whichever is earlier,

petition the court for a hearing” to adjudicate the claim. 21

U.S.C. § 853(n)(2) (2000).12 After the court rules on any

petitions, or if no such petitions are filed within the thirty-

day period, the government gains clear title to the property.

Id. § 853(n)(7). For Betty Brown, who received individual notice

of the forfeiture order, the thirty-day period began on February

8; for Veal, the period began on March 1. The appellants’

October 30 notices are therefore well outside the thirty-day

period provided in the statute.

It is true that the corporations’ February 27 filings were

within the statutory period, but there does not appear to be any

authority supporting the argument that the October 30 petitions

should be considered “amendments” that relate back to the earlier

filing date. The October 30 filings had nothing to “amend”

12 Only one of the indictment’s two forfeiture counts arose under 21 U.S.C. § 853. The other forfeiture count arose under 18 U.S.C. § 982, but it is likewise governed by the procedures of 21 U.S.C. § 853. See 18 U.S.C. § 982(b)(1) (2000).

34 inasmuch as the original filings were so defective that the court

refused to consider them. Cf. Kansa Reins. Co. v. Cong. Mortgage

Corp. of Tex., 20 F.3d 1362, 1367 (5th Cir. 1994) (explaining, in

a case involving Federal Rule of Civil Procedure 15, that “in

order for an amended pleading to relate back for statute of

limitations purposes, there must be a previous pleading to which

the amendment dates back” (internal quotation marks omitted)).

Brown and Veal contend that were advised by an attorney to

file the original innocent-owner claims in the names of their

corporations. While it may be within the discretion of the

district court to look past an untimely filing when there is

excusable neglect - a matter as to which we express no opinion -

here over seven months passed from the court’s order rejecting

the corporate filings until the filing of the new petitions. The

district court did not err in denying the claims as untimely.

In addition to arguing that their innocent-owner petitions

were timely, Brown and Veal also contend that forfeiture of the

subject assets is unconstitutional because the federal government

lacks a general police power. This argument is without merit.

Since the Commerce Clause gives Congress the authority to punish

drug conspiracies such as the one involved in this case, see

supra III.B, Congress can also enact forfeiture statutes as a

necessary and proper means of effectuating that Commerce Clause

power. U.S. CONST. art. I, § 8, cl. 18; United States v. Curtis,

965 F.2d 610, 616 (8th Cir. 1992).

35 VI. CONCLUSION

For the foregoing reasons, we AFFIRM the convictions and

sentences of Christopher Brown, Timothy Brown, and Kenneth

Pearson. We also AFFIRM the district court’s denial of Betty

Brown’s and Tongula Veal’s innocent-owner claims.