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United States of America v. Elaine Brown

January 19, 2012



The opinion of the court was delivered by: Thompson, Circuit Judge.

Before Lynch, Chief Judge, Lipez and Thompson, Circuit Judges.

A nine-month long stand-off between United States Marshals (the "Marshals") and husband and wife team, Edward and Elaine Brown, resulted in the Browns' criminal convictions. Edward and Elaine*fn1 each appealed and we consolidated. Both claim that the district court committed a myriad of errors justifying reversal. After careful consideration, we reject each argument and affirm.


A. The Tax Evasion Trial

To put this appeal in context, we begin with another criminal matter involving the Browns. In April 2006, Edward and Elaine were indicted by a federal grand jury on charges relating to their failure to pay federal income tax - an omission that stemmed from the Browns' belief that they were not legally obligated to do so. The Browns were tried and in January 2007, the jury returned a verdict convicting Edward and Elaine of conspiracy, federal tax crimes, and other financial crimes. Edward, who had stopped attending trial after only a few days, was convicted in absentia. Both Edward and Elaine were sentenced to just over five years in prison. Neither Brown attended the sentencing. Nor did they surrender to federal authorities.

Therefore, Stephen Monier, United States Marshal for the District of New Hampshire, sent the Browns a letter urging them to surrender. The Browns had not only been sentenced to prison but both had warrants out for their arrest - Edward for failing to appear at trial and Elaine for violating the terms of her release. The Browns did not comply with Monier's request and remained holed up in their secluded Plainfield, New Hampshire home, situated on an approximately one-hundred-acre tract of land. And so the Marshals hatched a plan for their arrest.

B. The Arrest

Because the Marshals had information that the Browns were armed and making threats, they elected not to simply enter the property and arrest them. Instead the Marshals conducted surveillance, which revealed a pattern of Edward traveling daily to the top of his driveway on an all-terrain vehicle and picking up his mail. The Marshals decided to attempt an arrest during this jaunt to the mailbox. The plan failed.

On June 7, 2007, Marshals were in place to make the arrest when Daniel Riley, a friend of the Browns came strolling up the driveway. Riley was alerted to the Marshals hiding in the woods, apparently by the Browns' dog whom he was walking. Riley fled despite being ordered to stop. Marshals fired non-lethal ammunition at Riley but missed, though he was eventually subdued with a taser. Edward heard the commotion and appeared at the tower on top of his house with a .50 caliber rifle, but he did not fire.

After the botched attempt to arrest Edward, the Marshals revised their approach. By that time, the Browns' case had gained national notoriety and supporters of the couple were flocking to their home. The Browns themselves were hosting festival-type gatherings at their home publicizing their resistance. The Marshals planned to take advantage of this by posing undercover as supporters and accomplishing the arrests in this capacity.

In October 2007, undercover Marshals made contact with the Browns through a confidential informant and learned that the couple wanted to retrieve some possessions from Elaine's dental office in Lebanon, New Hampshire.*fn3 On October 4th, undercover Marshals retrieved the property and brought it to the Browns' Plainfield home. The Marshals unloaded the property into the garage as Edward leveled an assault rifle at them, all the while expressing a reticence to trust people he did not know. Edward however eventually warmed up to the undercover officers and replaced the assault rifle with a handgun in his waistband and invited them to join him for beers and pizza. The group hung out on the Browns' front porch and at some point Elaine joined them, also carrying a handgun. They chatted about the couple's legal woes including their thus far successful evasion of arrest. When asked by one of the deputies how they had managed this feat, Edward responded that authorities were afraid to arrest him because if they did people would die, including the "Marshal," "Chief of Police," and "Sheriff."

The gathering continued in this fashion until one officer was able to maneuver himself between Edward and Elaine, at which time he gave a predetermined signal and the Marshals pounced. Neither Edward nor Elaine went quietly but eventually both were subdued and cuffed. Following their arrests, agents searched the Brown property and found a vast supply of explosives, firearms, and ammunition, including rifles, armor piercing bullets, pipe bombs, and bombs nailed to trees.

C. The Conspiracy Trial

The nine-month long stand-off resulted in the Browns' indictment. Both Edward and Elaine were charged with: (1) conspiring to prevent federal officers from discharging their duties under 18 U.S.C. § 372; (2) conspiring to assault, resist or impede federal officers under 18 U.S.C. §§ 111(a) and (b) and 371; (3) using or carrying a firearm or destructive device during and in relation to a crime of violence; and possessing a firearm or destructive device in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A) and (B); (4) being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1); (5) obstruction of justice under 18 U.S.C. § 1503; and (6) failing to appear at sentencing under 18 U.S.C. § 3146. Edward was also charged with failing to appear at trial in violation of 18 U.S.C. § 3146. After an eight day jury trial, Edward and Elaine were convicted on all counts.*fn4 Edward was sentenced to 37 years in prison and Elaine to 35.

This appeal followed. In it, Edward and Elaine each challenge their convictions on multiple but distinct grounds.*fn5 We address each party's arguments separately.


A. Edward Brown

1. Competency to Stand Trial

Although Edward's counsel did not raise his client's competency as an issue pre-trial,*fn6 the trial judge addressed it sua sponte.*fn7 The court did so by questioning Edward at a pre-trial status conference. It did not hold a formal competency hearing or order a competency evaluation. After the status conference, the court issued a written decision declaring Edward competent to stand trial. The court held that although Edward embraced an unconventional belief system, he demonstrated an understanding of the nature and consequences of the proceedings and an ability to consult with counsel. In making this finding, the trial judge considered in-person interactions with Edward, the record in this case, and the record in Edward's previous tax evasion case. On appeal, Edward argues that the district court erred by finding him competent without the benefit of a formal competency hearing or competency evaluation and was wrong in its conclusion. We disagree.

To begin with, it is well settled that the conviction of a person legally incompetent to stand trial violates due process. See Johnson v. Norton, 249 F.3d 20, 26 (1st Cir. 2001) (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). To challenge the district court's finding of competency, Edward "must present facts sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to [his] mental competence." United States v. Collins, 949 F.2d 921, 927 (7th Cir. 1991) (internal quotation marks and citation omitted) (alteration in original). "When there has been no hearing, and no examination of the defendant whatsoever, the appellate court reviews the district court's findings comprehensively." United States v. Lebron, 76 F.3d 29, 32 (1st Cir. 1996).

The test for competency is whether the defendant first has sufficient present ability to consult with counsel with a reasonable degree of rational understanding, and second has a rational and factual understanding of the proceedings against him. See United States v. Ahrendt, 560 F.3d 69, 74 (1st Cir. 2009) (citing Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). "The 'understanding' required is of the essentials - for example, the charges, basic procedure, possible defenses - but not of legal sophistication." Robidoux v. O'Brien, 643 F.3d 334, 339 (1st Cir. 2011). A district court must sua sponte order a competency hearing if there is reasonable cause to believe that a defendant is mentally incompetent. See Ahrendt, 560 F.3d at 74 (citing 18 U.S.C. § 4241(a)). Thus we query whether there was reasonable cause to believe Edward incompetent. After scouring the record, we answer this question in the negative. Based on the same reasoning, we find no fault in the court's determination of competency.

We start with Edward's ability to consult with counsel. While it appears that in the beginning Edward had some misgivings (based upon his unique legal philosophies) about whether his attorney could adequately represent him,*fn8 a review of the record reveals no indication that Edward was unable to consult with his attorney during this representation. In particular, when Edward's attorney sought to withdraw just moments prior to the start of trial based on a communication breakdown, the court denied the motion, finding that neither counsel nor Edward could articulate any specifics regarding the alleged breakdown. It is also significant that once trial was underway Edward's attorney, who more than any other courtroom player "enjoys a unique vantage for observing whether [his] client is competent," United States v. Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005), did not raise any concern about Edward's competency. Further, when Edward's attorney moved for a post-trial, pre-sentencing competency evaluation, he acknowledged Edward's ability to consult with him during trial, stating that Edward "was minimally able to assist counsel in the preparation and presentation of a defense" and only after trial did things drastically change.*fn9

We conclude that although Edward's relationship with his attorney might not have always been genial, there is no evidence that Edward could not consult with him "'with a reasonable degree of rational understanding.'" Ahrendt, 560 F.3d at 74 (quoting Dusky, 362 U.S. at 402). We do not think the district court erred when it found likewise.

As for Edward's understanding of the nature of the proceedings against him, we also concur with the district court's determination. To be sure, Edward made comments that on their face could lead one to question whether he even understood what was happening.1*fn10 Yet, he also made statements that evidenced a rational and factual understanding of the legal system.1*fn11

Edward further made a significant number of comments that reflected his atypical legal beliefs1*fn12 and overall distrust of the legal system.1*fn13 Viewed in context, these words and behaviors (though often bizarre) did not evidence confusion on Edward's part about the legal proceedings against him, but rather reflected firmly held, idiosyncratic political beliefs punctuated with a suspicion of the judiciary. Moreover, while some of these beliefs reflected a misunderstanding of the law (namely that the district court did not have jurisdiction over him and that it was a commercial court) they do not render Edward incompetent to stand trial. See Robidoux, 643 F.3d at 339 (finding that although defendant's belief that the court had no jurisdiction was a misunderstanding of the law, it was "a common illusion among certain groups alienated from society" and did not prevent him from "knowing that the government has put him on trial, recognizing the procedures to be used, or appreciating advice that lack of authority claims will not constitute an effective defense"). In fact, Edward's contention that courts have no authority over him is not a new one for federal judges. See, e.g., id. at 339 n.4 (gathering cases); United States v. Gerhard, 615 F.3d 7, 25 (1st Cir. 2010). As we have previously stated, "[s]ometimes these beliefs are sincerely held, sometimes they are advanced only to annoy the other side but in neither event do they imply mental instability or concrete intellect . . . so deficient that trial is impossible." Robidoux, 643 F.3d at 339 (quoting United States v. James, 328 F.3d 953, 955 (7th Cir. 2003)).

To sum up, after a comprehensive review of the district court's findings, we do not find reasonable cause to believe Edward mentally incompetent. Therefore the district court was not required to sua sponte order a formal competency hearing and evaluation. Edward's first argument is without merit; we turn to his next.

2. Tax Trial and Tax Law Evidence

At trial, Edward sought to present evidence of his beliefs that his previous tax trial was a sham and that tax laws are unconstitutional. Edward claimed this evidence would show that he lacked the mens rea or intent for the two conspiracy counts.1*fn14 Over the defense's objection, the trial judge excluded the evidence as irrelevant. Before this court, Edward claims this exclusion violated his constitutional right to defend himself. We review this constitutional question de novo. See Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487, 496 (1st Cir. 2011).

Whether it is rooted in the Fourteenth Amendment or in the Sixth Amendment, "the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Brown v. Ruane, 630 F.3d 62, 71 (1st Cir. 2011) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). However, an "accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). Edward's proposed defense was that he lacked the mens rea or intent1*fn15 to commit the substantive offenses underlying the conspiracy counts: (1) preventing the Marshals from discharging their official duties (Count 1, 18 U.S.C. § 372) and (2) assaulting, resisting, or impeding the Marshals while engaged in their official duties (Count 2, 18 U.S.C. §§ 111, 371). In other words: according to Edward, he could not have intended to thwart the Marshals in the performance of their "official duties" because he did not believe they were engaged in "official duties" since he considers tax laws unconstitutional and therefore his tax trial conviction illegitimate. This circuitous logic is faulty.

Edward was well aware that he was convicted at trial and that there was a warrant out for his arrest. Therefore his belief that the Marshals lacked authority to arrest him (assuming the belief was genuinely held) would have been based on an assumption that the conviction and warrant were invalid - the invalidity stemming from the supposed sham nature of the tax trial. The problem with this reasoning is that it presupposes that the constitutionality of Edward's conviction, and the validity of the warrant, impact whether the Marshals were engaged in "official duties." They do not, and thus Edward's mens rea as to these facts is irrelevant. Whether a federal officer is engaged in official duties "does not turn on whether the law being enforced is constitutional or applicable to the defendant, or whether the levy order being enforced was validly obtained; rather it turns on whether the federal officer is acting within the scope of what [he] is employed to do . . . or is engaging in a personal frolic of his own." United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) (internal quotation marks and citation omitted) (interpreting the phrase "official duties" in 18 U.S.C. § 111(a)).

There was more than sufficient evidence from which a fact finder could conclude that Edward knew that the Marshals were engaged in official duties. Similarly, there was more than enough evidence that Edward intended to prevent the Marshals from discharging those official duties and intended to assault, resist, or impede them in the performance of such duties (e.g., the arsenal of guns and bombs Edward accumulated and peppered his property with, the concerts and media statements publicizing his resistance, and Edward's statements that law enforcement officers would die if they tried to capture him). And as we said - Edward's subjective beliefs about the legitimacy of tax laws and his tax trial were irrelevant as to whether he intended to commit these offenses.1*fn16 Accordingly, the court did not err in disallowing the evidence. This signals an end to Edward's constitutional claim since the constitutional right to present a defense is not impaired "where the evidence proffered has been properly ruled irrelevant." United States v. Vazquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008); see also United States v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001) (a criminal defendant's "wide-ranging right to present a defense . . . does not give him a right to present irrelevant evidence") (internal citation omitted). We proceed to Edward's final argument.

3. Hearsay Statements

Edward contends that the following statements were improperly excluded at trial as hearsay: (1) Edward's statement to Marshal Stephen Monier that he would turn himself in if someone would show him the relevant law; (2) Edward's statement to Deputy Marshal Gary DiMartino that the judge in his tax trial would not allow him to present evidence; (3) Edward's testimony that the judge in his tax trial cleared the courtroom to make sure no one heard Edward's witnesses or evidence; and (4) Edward's statements made during a radio interview expressing a belief that the Marshals were trying to kill him and so he had to defend himself.1*fn17 Edward argues that these statements were not hearsay because they were not offered for the truth of the matter asserted, but rather to show that Edward lacked the mens rea or intent ...

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