United States v. Kentrail Brown

USCA11 Case: 22-12945 Document: 77-1 Date Filed: 10/03/2025 Page: 1 of 10

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12945 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

KENTRAIL BROWN, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 1:19-cr-00021-LAG-TQL-4 ____________________

Before BRANCH, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: Kentrail Brown appeals his convictions for conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute methamphetamine, distribution of

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22-12945 Opinion of the Court 9

Brown’s second argument is that the district court erred when it gave the jury a modified Allen charge after receiving a jury question about noting non-unanimity on the verdict form. We dis- agree. A party may not challenge as error a ruling invited by that party. United States v. Brown, 934 F.3d 1278, 1301 (11th Cir. 2019). When a party agrees with a court’s proposed jury instructions, the doctrine of invited error applies. United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010); see also United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003), abrogated in part on other grounds by Re- haif v. United States, 588 U.S. 225 (2019) (holding that counsel in- vited error on admitting certain evidence when they responded to the court’s asking if “everybody is agreeable to [admitting the con- tested evidence],” by saying “Yes, Your Honor”). Brown argues that he did not invite the error because mere acquiescence with a district court’s decision is not the same as in- viting that decision. But Brown’s argument misconstrues the law, as the doctrine of invited error applies when a party expressly agrees with a court’s suggestion. See Frank, 599 F.3d at 1240; Jerni- gan, 341 F.3d at 1290. Brown’s counsel unambiguously assented to the court’s proposed Allen charge by stating, “[y]es, your honor.” Doc. 73-3 at 252. He further underlined this assent when he voiced no objection even when the court solicited objections. Therefore, the Allen charge was invited by Brown and thus not subject to ap- pellate review.

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IV.

For these reasons, the district court’s judgment is AFFIRMED.

Footnotes

[2] Opinion of the Court 22-12945 methamphetamine, and using a firearm in furtherance of drug traf- ficking. Specifically, he contends that the district court committed plain error when it failed to sua sponte exclude certain testimony given by the government’s dual lay-expert witness. Brown also ar- gues that the district court committed plain error when it gave the jury a modified Allen charge after receiving a jury question about how to notate non-unanimity on the verdict form. Because the dis- trict court did not plainly err in permitting the full testimony of the dual lay-expert witness, and because Brown’s counsel waived re- view of the proposed Allen charge by expressing agreement, we af- firm. I. A grand jury charged Brown with four counts: (1) conspiracy to possess with intent to distribute methamphetamine, (2) distribu- tion of methamphetamine, (3) possession with intent to distribute methamphetamine, and (4) possession of a firearm in furtherance of a drug trafficking crime. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(viii), 18 U.S.C. §§ 924(c)(1)(A)(i), (2). During Brown’s criminal trial, the government called Xavier Jordan—a drug courier—who testified that a trailer in Cairo, Geor- gia was a methamphetamine distribution hub controlled by a man named Joseph Jones. The government’s next witness, Nicholas Harden, testified that he had lived at that trailer for two years with Brown. During that time, Harden testified, he observed Brown sell methamphetamine for Jones. Harden further testified that he first 22-12945 Opinion of the Court 3 became aware that the trailer was a drug hub when his brother, Tobias Sanders, was kidnapped. The government also produced several wiretap statements featuring Brown’s coconspirators. Next, Orrie Bell testified for the government that he would trade oxycodone pills for methamphet- amine at the trailer, and that sometimes these trades were with Brown. Bell stated that he twice saw Brown bring cash from the methamphetamine he had sold into the trailer. The government presented several recorded conversations between Jones and Bell in which they discussed various aspects of the drug operation; in one, Bell asked Jones where Brown was because he was looking to sell some pain pills. The government next called Georgia Bureau of Investiga- tion Officer Stripling Luke—the case agent who oversaw the inves- tigation into Brown and his coconspirators. After establishing Of- ficer Luke’s credentials and experience in drug enforcement, the government tendered him as an expert witness in “lingo, tools of the trade, and the use of firearms in furtherance of drug traffick- ing.” The district court qualified Officer Luke as an expert but in- structed the jury that his opinion need not be accepted. Officer Luke began by explaining what “corners” were: the product of cutting off the corners of a Ziplock bag to package a small quantity of drugs. He explained that the trailer contained ev- idence of these bags, digital scales, and measuring cups. He further testified that based on his training and experience, this evidence in- dicated that drug distribution was occurring at the trailer. On the

[4] Opinion of the Court 22-12945 second day of trial, the government used Officer Luke to authenti- cate and describe several recorded telephone calls and still photo- graphs captured on pole cameras mounted near the trailer. As part of this testimony, Officer Luke identified several peo- ple from still images produced from the pole cameras. The prose- cution asked him questions “based on [his] training and experi- ence,” pertaining to quantitative drug terms and their correlation with personal use or distribution. They also asked him to interpret a visitor’s two close, successive trips to the trailer. Officer Luke speculated that the visitor could have made a quick drug sale at a nearby location and then returned to obtain more drugs, or that he could have come back to complain that he had not received enough drugs for the price he had paid. Near the end of Officer Luke’s testimony, he recounted that on the day one of the coconspirators was arrested, Officer Luke saw on the pole camera that a large gathering of people was form- ing at the trailer. He stated that there were at least 20 cars pulled up and described how the “body movements” of the people sug- gested that a “heated discussion” was going on. Officer Luke added that Sondra Jones, Joseph Jones’s mother, was in this gathering. He explained that he recognized Sondra Jones because she had come to the FBI early in its investigation of the conspiracy to report her son’s status as a “big drug dealer.” After identifying several other still photos of the gathering, Officer Luke spontaneously opined, “there’s a lot of drama that was happening at this time based on what we could see with their body movements.” Officer Luke also 22-12945 Opinion of the Court 5 testified that he had arranged an undercover agent to wear a re- cording device and execute a controlled buy with Brown. The gov- ernment produced the video of the buy, along with a still photo showing Brown weighing methamphetamine with a digital scale. The jury began deliberating at 11:13 a.m. on the fourth day of trial. At 1:30 p.m., the jury submitted two questions to the court, one of which was “Do we need to write not guilty if we all don’t agree about a count. And if so, do we still all sign.” The district court conferred with the parties and suggested giving a modified Allen charge to advise the jury to continue deliberating until they reached a unanimous verdict. The government responded, “I agree, your Honor,” and Brown’s counsel responded, “Yes, your Honor.” The court recharged the jury with the modified Allen in- struction and asked the parties if they had objections. The govern- ment said that it had none, and Brown’s counsel stated “No, your Honor.” The jury returned to deliberate at 1:35 p.m. and 35 minutes later told the court that it had reached a verdict of guilty on all four counts. In total, the jury deliberated for about two and a half hours. Brown appealed. II. We review a district court’s decisions regarding the admissi- bility of evidence and testimony for abuse of discretion. United States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019). But issues not preserved below are reviewed for plain error only. Id. To pre- vail on plain error review, a party must initially establish three

[6] Opinion of the Court 22-12945 conditions: there must be an error that has not been intentionally relinquished or abandoned, that error must be plain, and the error must have affected the defendant’s substantial rights such that without the error, there would have been a reasonable probability of a different result. Id. at 1264, 1267. If these first three conditions are met, we also consider whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. Meeting all four prongs is difficult and places a “daunting obstacle” before the appellant. United States v. DiFalco, 837 F.3d 1207, 1221 (11th Cir. 2016). III. Brown argues that the district court erred in two ways: first, he says the district court erred when it did not sua sponte limit what he contends was improper and prejudicial testimony of a dual lay- expert witness; and second, he says the district court erred when it gave the jury a modified Allen charge after receiving a jury question about noting non-unanimity on the verdict form. We address each argument in turn. We start with Brown’s first argument that the district court erred when it did not sua sponte limit what he contends was im- proper and prejudicial testimony of a dual lay-expert witness. Brown’s counsel did not object during trial to this testimony, so we review it for plain error. It is error to admit “speculative interpre- tive testimony” that purports to interpret “conversations as a whole.” Hawkins, 934 F.3d at 1264. It is also error to admit testi- mony that interprets plain, non-coded language to the jury. Id. A 22-12945 Opinion of the Court 7 trial court must be vigilant against this error when a witness testi- fies as a dual lay-expert witness because the jury might lend unmer- ited weight to the expert’s lay testimony. Id. at 1266. Hearsay (an out-of-court statement offered for the truth of the matter asserted) is also generally inadmissible. Fed. R. Evid. 801(c), 802. If the gov- ernment’s case hinges on testimony admitted in error, admitting the testimony is plain error because it affects the defendant’s sub- stantial rights. Id. at 1267. If the improper testimony is “merely cu- mulative” to other evidence, admitting it is not plain error. See id. (discussing United States v. Emmanuel, 565 F.3d 1324, 1336 (11th Cir. 2009)). Brown argues that two pieces of Officer Luke’s testimony were improperly admitted: his recounting of Sondra Jones’s out-of- court declaration that her son was a “big drug dealer,” and his spec- ulation that there was “drama” at the trailer as exhibited by peo- ple’s “body movements.” Brown argues that Sondra Jones’s state- ment was inadmissible hearsay, and that the testimony about “drama” at the trailer improperly drew a conclusion for the jury. Brown maintains that this testimony affected his substantial rights because it came from an expert witness and it associated Brown with drama, violence, and “big drug dealer[s].” The government argues that the prosecution clearly deline- ated Officer Luke’s expert and lay witness testimony, and that his lay witness testimony was based on firsthand knowledge. The gov- ernment further maintains that the challenged testimony was given to explain how Officer Luke knew the individuals at the

[8] Opinion of the Court 22-12945 trailer. The government adds that this testimony was merely cu- mulative to the substantial evidence establishing Brown’s guilt. This evidence included the testimony of Xavier Jordan, Nicholas Harden, and Orrie Bell, as well as the phone calls, pole camera pho- tos that tied Brown’s arrivals and departures at the trailer to drug transactions, and controlled buy that resulted in photos of Brown measuring out methamphetamine on a digital scale. We agree with the government that the failure to sua sponte limit Officer Luke’s testimony was not plain error. Officer Luke’s recounting of Sondra Jones’s out-of-court declaration about her son being a “big drug dealer” was not hearsay because it was not offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c)(2). Rather, this statement established why Officer Luke could recognize Sondra Jones in the pole camera photos. And ad- mitting Officer Luke’s observation that there was “drama” at the trailer was not error because it did not purport to interpret “con- versations as a whole” or plain, non-coded language. See Hawkins,

[934] F.3d at 1264. In addition, neither piece of testimony affected Brown’s substantial rights because it was “merely cumulative” to the extensive evidence establishing Brown’s guilt. See id. at 1267; see also Emmanuel, 565 F.3d at 1336. This evidence included the co- conspirator testimony that Brown was selling drugs, the wiretap recordings that referenced Brown selling drugs, and the photo- graph of Brown measuring methamphetamine onto a digital scale during the controlled buy. The objected-to portions of Officer Luke’s testimony were thus unnecessary to establish Brown’s guilt.