United States v. Gaston Brown

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 2024
• Docket: 22-50158
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50158

Plaintiff-Appellee, D.C. No. 2:17-cr-00047-CAS-1 v.

GASTON BROWN, AKA Kevin Brown, MEMORANDUM* AKA J.B., AKA M.W.,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted July 11, 2024 Pasadena, California

Before: IKUTA and NGUYEN, Circuit Judges, and BATTAGLIA,** District Judge.

Gaston Brown (“Brown”) appeals his convictions and sentence after a jury

trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. Brown was indicted on five counts of drug, credit card fraud, and identity

theft offenses for conspiring with a flight attendant to smuggle drugs between

airports and using another person’s identity to carry out the crimes. At trial, the

government presented testimony from Marsha Reynolds (“Reynolds”), a flight

attendant with whom Brown coordinated to bring suitcases containing his

contraband through airport security, as well as evidence that Brown obtained and

used a credit card in someone else’s name to pay for the flights associated. The

jury found Brown guilty on all five counts, and the district court sentenced him to a

total of 165 months of imprisonment.

First, Brown challenges his conviction under 18 U.S.C. § 1029(a)(1) for

access device fraud based on instructional error and ineffective assistance of

counsel. He argues that the jury instructions erroneously instructed the jurors on

the intent element of access device fraud because it defined intent to defraud as

“intent to deceive or cheat,” rather than “intent to deceive and cheat.” Brown

relatedly argues that his trial counsel was constitutionally ineffective for failing to

object to the erroneous instruction.

As to the instructional error challenge, because Brown did not object to the

district court’s jury instructions, his challenge is subject to plain error review. See

United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006). Brown must

therefore show that there was “(1) error, (2) that is plain, and (3) that affects

2 substantial rights.” United States v. Bautista, 989 F.3d 698, 701-02 (9th Cir. 2021)

(citation omitted). If these three elements are met, we have discretion to correct

the forfeited error. United States v. Olano, 507 U.S. 725, 732 (1993) (citing Fed.

R. Crim. P. 52(b)).

Here, the first and second elements are met. The government concedes that

in light of United States v. Saini, 23 F.4th 1155 (9th Cir. 2022), the district court’s

“intent to defraud” instruction was erroneous and that the error is plain. As for the

third element, Brown bears the burden of showing that the error “affects substantial

rights,” which means “the error must have been prejudicial: It must have affected

the outcome of the district court proceedings.” Olano, 507 U.S. at 734.

Notably, at oral argument, Brown abandoned his challenge to the sufficiency

of the evidence to prove an intent to deceive and cheat, and instead, argued solely

that we must exercise our discretion to correct the error because Brown was denied

his constitutional right to have all elements of § 1029(a)(1) submitted to the jury.

As Brown abandoned his argument that there was a lack of sufficient evidence to

prove an intent to deceive and cheat at trial, he has failed to show that the district

court’s instructional error “must have been prejudicial.” Olano, 507 U.S. at 734.

We therefore hold that Brown has not shown that his substantial rights were

violated.

3 In addition, we do not find that this case warrants an exercise of discretion to

correct the error. “Rule 52(b) leaves the decision to correct the forfeited error

within the sound discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (cleaned up).

Such circumstances are not present here.

“[A]n instruction that omits an element of the offense does not necessarily

render a criminal trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.” Neder v. United States, 527 U.S. 1, 9 (1999). And

as previously discussed, Brown effectively conceded there was sufficient evidence

from which a jury could find an intent to defraud. Moreover, where, as here, the

defendant has not shown that the error was prejudicial, we generally cannot correct

the forfeited error. See Olano, 507 U.S. at 734 (“In most cases, a court of appeals

cannot correct the forfeited error unless the defendant shows that the error was

prejudicial.”). We find no reason to depart from the general rule here.

As to Brown’s ineffective assistance of counsel claim, we decline to address

it because it is procedurally defective. “Ineffective assistance challenges are

generally brought by collateral attack on the conviction. This court usually

declines to reach ineffectiveness challenges on direct appeal, because the claim

4 cannot be advanced without development of facts outside the record.” United

States v. Velte, 331 F.3d 673, 681 (9th Cir. 2003) (internal citation omitted).

We also hold that the claim is without merit because the intent to deceive

instruction was not erroneous at the time of the trial. See Strickland v. Washington,

466 U.S. 668, 689 (1984) (explaining that a court must assess attorney

performance without “the distorting effects of hindsight” and “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance”).

Second, Brown challenges his aggravated identity theft conviction under 18

U.S.C. § 1028A(a)(1), arguing that the Supreme Court’s decision in Dubin v.

United States, 599 U.S. 110 (2023) establishes that the jury instructions given were

erroneous. Brown argues that the district court incorrectly told the jurors that the

government need not prove the identity possessed was stolen, and failed to instruct

that the identity must have been at the “crux” of the access device fraud charged as

the predicate offense.1 Because Brown did not object to the jury instructions

below, we review for plain error. See Alferahin, 433 F.3d at 1154.

Dubin v. United States did not overrule our cases holding a person could be

1 Brown also challenged the sufficiency of the evidence as to his aggravated identity theft conviction, but because his challenge simply reiterated those raised and subsequently abandoned at oral argument with respect to his access device fraud conviction, it fails for the same reasons discussed above.

5 liable for identity theft without having stolen the identity. See United States v.

Osuna-Alvarez, 788 F.3d 1183, 1185–86 (9th Cir. 2015) (per curiam). Dubin did

not expressly address “without lawful authority.” See 599 U.S. at 128 n.8 (“The

Court need not, and does not, reach the proper interpretation of ‘without lawful

authority.’”). Therefore, the reasoning of Osuna-Alvarez is not “clearly

irreconcilable” with the reasoning of Dubin, Miller v. Gammie, 335 F.3d 889, 893

(9th Cir. 2003), and we remain bound by Osuna-Alvarez’s holding that “§ 1028A

does not require theft as an element of the offense.” 788 F.3d at 1185. Further,

where, as here, the predicate offense is based on the possession theory of identity

theft, the district court did not need to provide a Dubin instruction (i.e., that

Brown’s misuse of another person’s means of identification is at the crux of what

makes the underlying offense criminal). Therefore, there was no error, let alone

plain error.

Third, Brown argues that his drug-related convictions should be vacated

because the government’s summation and testimony of the cooperating witness,

when combined with the jury instructions, undermined the requisite mens rea.

Because Brown did not raise the issue before the district court, we review it for

plain error. See Olano, 507 U.S. at 732.

Brown argues “Reynold’s testimony about ‘facilitation’ blurred the requisite

mens rea required to convict for the substantive and conspiratorial drug offenses

6 under §§ 841 and 846.” Reynolds testified she believed the suitcases she

transported only contained money, and not drugs, but that she “assumed it was

drug money.” She further testified she was arrested “for conspiracy for facilitating

. . . drugs, but at the time, [her] knowledge was of money, not of drugs.” She

eventually pleaded guilty to conspiracy to possess with intent to distribute and to

distribute cocaine. Brown asserts Reynolds “did not state that she knew she was

transporting drug money,” and thus this testimony, combined with the

government’s closing arguments, “left the jury with the impression that moving

money to help a conspiracy is sufficient rather than making it clear that a defendant

must know that he or she is helping a drug conspiracy.”

Brown’s argument, however, is belied by the record. When asked on direct

examination whether she had “any understanding of where the defendant got these

large amounts of money[,]” Reynolds responded that she “assumed it was drug

money.” She stated the basis of her assumption was that she never knew Brown to

have a job or own a business, and he made statements that led her to believe that he

was dealing drugs.

Moreover, we have previously explained, “[t]here is no dispute that where a

defendant knowingly facilitates movement of money derived from narcotics . . . for

narcotics traffickers, [s]he can be found guilty of a conspiracy to aid and abet

narcotics trafficking.” United States v. Cuevas, 847 F.2d 1417, 1422 (9th Cir.

7 1988); United States v. Otis, 127 F.3d 829, 834 (9th Cir. 1997) (per curiam)

(relying on Cuevas and holding that a conspiracy to launder money can also be

aiding and abetting a conspiracy to sell narcotics). Thus, we find no plain error

here. Similarly, the district court, relying on Reynolds’ testimony, did not err by

omitting a deliberate-ignorance instruction, nor did it mislead the jury by

“blurr[ing] the requisite mens rea required to convict for the substantive and

conspiratorial drug offenses under §§ 841 and 846.”

Next, Brown asserts it was improper for the prosecutor to mention

Reynolds’ guilty plea, other than in relation to her credibility. There was no plain

error because the government “did no more than elicit the fact that guilty pleas

were entered” so that the jury could assess her credibility. United States v.

Halbert, 640 F.2d 1000, 1005 (9th Cir. 1981) (per curiam). Specifically, the

government briefly asked whether Reynolds was “testifying in the hopes of

receiving a lighter sentence” and again mentioned Reynolds’ guilty plea during its

closing rebuttal to buttress her credibility. Further, the district court gave clear

instructions to the jury that evidence of Reynolds’ guilty plea could only be used to

assess her credibility by stating:

This guilty plea is not evidence against the witness and you may consider it only in determining this witness’s believability. For these reasons, in evaluating the testimony of Marsha-Gay Reynolds, you should consider the extent to which or whether her testimony may have been influenced by these factors. In addition, you should

8 examine the testimony of Marsha-Gay Reynolds with greater caution than that of other witnesses.

Therefore, the district court did not commit plain error.

Finally, Brown asserts that although the mens rea for the underlying § 841

offense (possession with intent to distribute and to distribute cocaine) is a required

element to sustain a § 846 (conspiracy to possess with intent to distribute and to

distribute cocaine) conviction, the jury instructions for the drug conspiracy failed

to include as a distinct element that Brown had the necessary mens rea for the

underlying offense. Brown further argues that the jury was given a Pinkerton v.

United States, 328 U.S. 640 (1946) instruction, and therefore, the conviction on the

substantive § 841 offense did not independently establish the requisite mens rea

because the jury only had to find that Brown could reasonably foresee the

substantive drug offense.

The district court did not err. The district court’s jury instructions for

conspiracy explicitly required the government to prove beyond a reasonable doubt

(1) “an agreement between two or more persons to distribute cocaine, or to possess

with intent to distribute cocaine[,]”—the mens rea necessary for a violation of

§ 841(a)—and (2) Brown “joined in the agreement knowing of its purpose and

intending to help accomplish that purpose.” Moreover, because, as discussed

above, neither Reynolds’ testimony nor the government’s arguments were

improper, there was no plain error.

9 As for his conviction under 18 U.S.C. § 1028(a)(7), Brown argues the jury

instructions stated the jury could find him guilty if his conduct was in connection

with “facilitat[ing] a drug trafficking crime,” but that “there was no legal basis for

such a ‘facilitation’ offense.” The district court’s jury instruction stated, in

relevant part, that the government must prove that Brown knowingly used the

identification of another person “with the intent to commit, to aid and abet the

commission of, or in connection with the commission of, conspiracy to possess

with intent to distribute cocaine and to facilitate a drug trafficking crime[.]”

We find no error in the inclusion of the jury instruction because § 1028(a)

plainly states it is a violation to use the identification of another person “with the

intent to commit, or to aid or abet, or in connection with, any unlawful activity[,]”

and the inclusion of the term “facilitate” merely parrots these requirements of

aiding an unlawful activity. Moreover, while the term “facilitate” appears in

subsection (b), which describes the punishment for an offense under subsection (a),

the Court is unaware of any case law, and Brown offers none, that inclusion of

terminology from subsection (b) is improper for jury instructions for a violation of

§ 1028.

AFFIRMED.