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United States v. Brown

United States District Court, W.D. Virginia, Roanoke Division

March 26, 2019



          Michael F. Urbanski, Chief United States District Judge

         On October 18, 2018, a federal grand jury returned a one count indictment charging defendant Diamond Topaz Brown with unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The indictment alleges that on or about September 20, 2018, Brown, having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess, in and affecting commerce, a firearm, that is, a Taurus, model PT111 G2, 9mm semi-automatic pistol. ECF No. 4, at 1. On February 5, 2019, the government filed a notice, ECF No. 31, pursuant to Rule 404(b) of the Federal Rules of Evidence. In this notice, the government stated its intention to admit three different items into evidence: (1) that Brown possessed loaded firearms on two prior dates, namely August 22, 2006 and October 19, 2012; (2) that Brown threatened to kill several individuals and their families and made other threats of violence in the days immediately preceding the charged offense; and (3) a probation form purportedly signed by Brown stating, "I will not use, own, possess, transport or carry a firearm." ECF No. 31, at 1-2.[1] The matter before the court is Brown's motion to suppress, ECF No. 32, and exclude from evidence the three items above filed on February 11, 2019. On February 15, 2019, the government filed its response in opposition, ECF No. 33, to Brown's motion. On Monday, March 18, 2019 the court held a hearing on this and other outstanding motions. Upon consideration of the parties' arguments, a thorough review of the record, and for the reasons stated below, Brown's motion to suppress is GRANTED in part and DENIED in part.


         The following background is a summary of the evidence the government expects to adduce at trial and is derived from the government's factual proffer. In the late hours of September 19 and into the early hours of September 20, 2018, members of the Roanoke Police Department, United States Marshals Capital Area Regional Fugitive Task Force, and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) were attempting to locate Brown and serve her with outstanding state felony extortion warrants related to various threats of violence allegedly made by Brown. ECF No. 33, at 1. These state warrants had been obtained by Roanoke Police Department officers. Id. While searching for Brown, a red Infiniti SUV, associated with Brown's wife and understood to be driven by Brown, was located in the parking lot of a Roanoke-area pool hall and video gaming venue, Guys and Dolls. Id. The investigative team set up surveillance around the business in order to attempt to arrest Brown on the warrants. Id. at 1-2. While surveilling the parking lot, officers observed Brown exiting Guys and Dolls and approaching the red SUV. Id. at 2. Brown was observed opening the driver's side door of the red SUV, appeared to remove an item from the vehicle and to place it under her shirt. Id. Brown then walked over to a white Toyota sedan, and opened the driver's side door. Id. Brown then appeared to remove the object from under her shirt and place it under the driver's seat of the Toyota. Id.

         After she did this, officers moved in to arrest Brown, who had quickly re-entered Guys and Dolls. Id. Officers located Brown and arrested her without incident. Id. Officers looked in the driver's window of the white Toyota sedan, whose driver's seat Brown had just been seen placing an object under. Id. While looking in the driver's window of that sedan, officers saw part of what appeared to be a pistol protruding out from under the driver's seat. Id. The vehicle was secured, and a state search warrant was obtained and executed on the vehicle. Id. Upon searching the vehicle, a Taurus, model PT111 G2, 9mm semi-automatic pistol, serial number TIZ04805, was recovered from under the driver's seat. Id. The firearm was loaded with an extended magazine containing 29 rounds of ammunition. Id. The officer conducting the search also found a baggie with two grams of a white, rock-like substance. Id.

         A review of Guys and Dolls' security camera footage from the Guys and Dolls parking lot allegedly showed Brown removing what appeared to be a handgun from the red Infiniti SUV and placing it under her shirt. Id. Brown can then allegedly be seen going to the white Toyota sedan, bending down into the car, where she appears to place the item under the front seat of that vehicle. Id. After her arrest, officers Mirandized Brown who, according the government, acknowledged her rights and checked the box on a form that she understood them.[2] Id. Brown went on to speak with officers, and among other things, denied having a firearm in her possession. Id. A query of Brown's criminal history reportedly revealed that she had been convicted of multiple felony convictions before the September 20, 2018 conduct charged in the current indictment. Id. at 3. Her prior convictions include felony convictions for eluding police, possession of controlled substances, possession of a cellular phone by a prisoner, and four separate convictions for manufacture, sale, possession of controlled substances, and revocation of a suspended sentence. Id.

         The government indicates that an ATF Special Agent and Interstate Nexus Expert was provided a description of the above-listed firearm and concluded that it is a firearm, as defined in the federal code, and that it was manufactured outside the Commonwealth of Virginia, and therefore, since it was possessed in Virginia, had moved in and/or affected interstate or foreign commerce. Id. On October 18, 2018, a federal grand jury returned a one-count indictment, charging Brown with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Id. The indictment was filed with this court on the same day. Id. On February 5, 2019, the government filed its notice pursuant to Rule 404(b) of the Federal Rules of Evidence indicating evidence that it may seek to introduce at trial. Id.

         The notice included two prior dates that Brown has possessed a firearm, which the government characterizes as similar conduct to what is charged in the present matter. Id. Specifically, on or about October 19, 2012, the government states that Brown possessed a loaded 9mm firearm, which was recovered under the driver's seat in a car she was driving. Id. The police also recovered a scale with residue on it and a quantity of white chunky substance in the center console and $540 in cash in the front pants pocket of Brown. Id. Brown was charged with possession of crack cocaine with the intent to distribute, possession of a firearm after being a convicted felon, and several other charges. Id. The government indicates that pursuant to a plea agreement, Brown pled guilty to the cocaine charge and the firearm charges were dismissed. Id. at 3-4. The notice also included Brown's possession of a loaded handgun on August 22, 2006, in which she was in the front passenger's seat with a .22 caliber pistol in her lap. Id. at 4. When Brown was detained related to the 2006 incident, she stated that she just bought the pistol from another individual that night. Id. An officer obtained a juvenile petition for Brown for possessing the firearm by a person under the age of eighteen. Id.

         The government's notice also included evidence that in the days leading up to the conduct charged in the indictment, Brown made various threats to kill several individuals and their families, that she would target area schools, and that she and others were going to shoot up and/or rob Sugar Ray's, another video gaming establishment in Roanoke, Virginia. Id. Specifically, the government indicates that multiple witnesses are expected to testify about threats Brown made from September 15-18, 2018. Id. On September 15, a witness allegedly heard Brown get into a disagreement with a cashier at Sugar Ray's and threaten to shoot up the business and rob it. Id. Another witness reportedly heard Brown call others to have them to bring their guns to the building to shoot up the place. Id. Also, on September 16, Brown was present at Sugar Ray's, and was playing video gaming machines. Id. On a video that was taken at this time, she allegedly can be heard saying that she was going to go to her car, get more money, and get her "strap," a term that the government claims is a reference to a firearm. Id. Again, on September 18, this witness saw Brown at Sugar Ray's, and Brown allegedly stated that she would shoot up the place. Id. This same day, several individuals allegedly received phone calls from Brown threatening to kill them and their families. Id. Brown allegedly reiterated threats that she was going to have someone shoot up or rob Sugar Ray's. Id. Finally, in speaking with one of these individuals, Brown allegedly demanded $20, 000 within twenty-four hours. Id. If this demand was not met, Brown stated that she would have some associates come down and handle things. Id. She also allegedly stated that if her demands were not met, Brown would target the schools and children of certain of the individuals she was threatening. Id. 4-5. Certain of these threats made up the conduct for the felony extortion warrants that officers served on Brown on September 20, when she was found to be possessing the charged firearm. Id. at 5.

         Lastly, the notice included that during Brown's supervision for a prior felony conviction, she signed a form stating various conditions. Id. Specifically, on November 1, 2016, Brown reportedly signed a form stating that she would not, "use, own, possess, or transport or carry a firearm[, ]" among other terms and conditions. Id. In her motion to suppress, Brown moves the court for the exclusion of all of the aforementioned evidence contained in the government's Rule 404(b) notice or, alternatively, that the court provide a limiting instruction upon its admission.


         Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). Such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. "Rule 404(b) is a rule of inclusion, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition." United States v. Moore, 709 F.3d 287, 295 (4th Ck. 2013) (quoting United States v. Byers, 649 F.3d 197, 206 (4th Cir. 2011)). However, if the government intends to offer evidence under this rule at trial, then it must, as it has done in this case, give the defendant "reasonable notice of the general nature of such evidence" beforehand. Fed.R.Evid. 404(b)(2).

         The Fourth Circuit has outlined a four-factor test that must be satisfied before a court can properly admit prior-bad-acts evidence under Rule 404(b):

(1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. In this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. [Finally], (4) the evidence's probative value must not be ...

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