PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4249

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JEAN BROWN,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William D. Quarles, Jr., District

Judge. (1:11-cr-00050-WDQ-1)

Argued: May 15, 2014 Decided: July 1, 2014

Before KING, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in 

which Judge Wynn and Judge Floyd joined.

ARGUED: Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, 

Baltimore, Maryland, for Appellant. Peter Marshall Nothstein, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee.
2

KING, Circuit Judge:

Jean Brown appeals the district court’s entry of a criminal 

judgment against her following a jury trial, whereby she was 

convicted of conspiring to traffic in 1,000 kilograms or more of 

marijuana, and of additional charges stemming from the 

kidnapping and murder of Michael Knight in connection with her

trafficking operation. Brown also appeals the sentence of life 

imprisonment imposed on one of her four convictions. Discerning 

no cognizable error, we affirm.

I.

The government’s evidence at trial demonstrated that Brown 

was at the forefront of a marijuana trafficking enterprise, in 

which copious quantities of the drug were smuggled across the 

border from Mexico and trucked northeast for resale. Brown 

facilitated her trafficking activities through a number of 

trucking companies under her control. In the typical instance, 

drivers hauling perishables across the country would meet the 

Mexican suppliers in Arizona, conceal the contraband within the 

legitimate cargo, and return to Baltimore. Some of the 

marijuana was sold locally, but most of it was redistributed for 

sale in Pittsburgh and elsewhere. Each month, Brown’s operation 

processed about one ton of marijuana, from which she made about 

$1 million to finance the next monthly purchase.
3

The lion’s share of the proceeds that Brown did not return 

to the business made their way to Jamaica, where she invested 

them in real estate. Brown was born in Jamaica, but came to the 

United States as an adult in 1994 or 1995 to reside for a time 

in Miami. Brown moved to the Baltimore area in about 2000 and 

began to build her drug trafficking operation, though she 

maintained connections with Florida and returned there 

frequently. In 2006, having wed an American husband some years 

earlier, Brown herself became a United States citizen through 

naturalization.

On Christmas Day, 2008, Michael Knight and two others were 

caught at Montego Bay attempting to enter Jamaica with about 

$565,000 in cash from Brown’s trafficking proceeds. The 

authorities confiscated the entire sum. Almost a year later, on 

December 16, 2009, Knight again ran afoul of Brown when he 

failed to account for $250,000 of $1 million in cash that he was 

supposed to be holding for her. Upon discovering the shortfall, 

Brown enlisted Carl Smith and Dean Myrie to help her pick up 

Knight and transport him, bound with a telephone cord, to an 

apartment in the White Marsh area of Baltimore County. When it 

became apparent that Knight would not produce the missing funds 

or disclose their location, Brown summoned Peter Blake and Huber 

Downer to stab Knight to death in the apartment’s bathtub. 
4

Blake, Downer, and Myrie then dismembered Knight’s corpse and 

disposed of it in dumpsters throughout the Baltimore area.

The government’s investigation of the 2008 Jamaica 

interdiction and concomitant seizure of Brown’s trafficking 

proceeds resulted in her indictment on July 14, 2010, for bulk 

cash smuggling, see 31 U.S.C. § 5332, and for conspiracy to 

commit the same. About three weeks afterward, Brown was 

arrested in Florida and brought to Maryland for arraignment and 

detention. Brown retained a Fort Lauderdale lawyer to defend 

her, and, with counsel’s assistance, she pleaded guilty to the 

substantive cash smuggling count on October 13, 2010. Seeking 

sentencing credit, Brown had her lawyer arrange a police station

interview that same day with Baltimore County detectives 

investigating the Knight murder. Counsel did not attend the 

interview with his client, however, electing instead to board a 

return flight to Florida. The October 13 interview led to 

another on November 3, 2010, which again was conducted outside 

the presence of counsel. Brown was advised of her 

constitutional rights prior to each interview, see Miranda v. 

Arizona, 384 U.S. 436 (1966), and, on both occasions, she agreed 

to talk to the detectives without her lawyer present.

Not long thereafter, on February 1, 2011, the grand jury 

returned a new indictment against Brown. In the operative

Fourth Superseding Indictment of August 21, 2012, Brown was 
5

charged in Count One with conspiracy to traffic in marijuana, 

see 21 U.S.C. §§ 841(a)(1), 846; in Counts Two and Four with 

respectively, kidnapping and murdering Knight in aid of 

racketeering, see 18 U.S.C. § 1959(a)(1); and in Count Three 

with conspiracy to commit murder in aid of racketeering, see id.

§ 1959(a)(5). Brown, having retained new counsel, moved to 

suppress certain of her pretrial statements, including those she 

made during the interviews at the police station. Following a 

hearing on January 4, 2013, that motion was denied. 

Trial commenced before a jury in Baltimore on February 4, 

2013. Brown was tried alongside Gabrial Campa-Mayen, a Mexican 

intermediary indicted for his role in the drug conspiracy. A

number of Brown’s former associates testified for the 

government, relating the details of her marijuana trafficking

operation and its breadth. Blake, Downer, and Myrie 

corroborated the other witnesses’ testimony on that point, and 

they elaborated in detail on Brown’s involvement in Knight’s 

murder.

During its examination of one of the County detectives, the 

government played recorded video excerpts of the police station 

interviews. The recordings revealed that Brown did not comport 

herself well during the detectives’ questioning, coming across 

as evasive and less than forthright. Later, the government 

would argue to the jury that Brown’s story toward the end of the 
6

recording was “a far cry from where we started . . . where she 

didn’t know anything about anything, and it’s a far cry from 

what she said at each successive stage in her description of the 

events to the detectives.” J.A. 1758.1 The government 

emphasized that, as the interviews progressed, Brown “eventually 

admitted every fact of the murder except for her own 

involvement.” Id.

Brown testified in her own defense. Upon ascending the 

witness stand, she continued to assert her innocence, insisting

that she had no association with drug trafficking or complicity 

in Knight’s death. According to Brown, Knight had been 

restrained and threatened after he failed to account for Smith’s 

money. Brown and Myrie left the White Marsh apartment for a

time to drive Smith to a truck stop, where he was embarking on a 

trip to Arizona; Knight remained in the apartment, in the 

custody of Blake and Downer. Brown returned to the apartment 

with Myrie to discover that Knight had been killed, with Blake 

taking the credit.

Following the close of all the evidence, during the 

charging conference on February 13, 2013, a question arose 

concerning the proper calculation in kilograms of the drug 

 1 Citations herein to “J.A. ___” refer to the contents of 

the Joint Appendix filed by the parties to this appeal.
7

quantity attributable to the conspiracy. The question was 

significant, because if Brown were convicted of conspiring to 

traffic in 1,000 kilograms or more of marijuana, she would be 

susceptible to imprisonment under the applicable statute from 

ten years to life. See 21 U.S.C. § 841(b)(1)(A). If, on the 

other hand, the conspiracy were found to involve less than 1,000 

kilograms (but more than 100), the prescribed statutory range 

would be five to forty years. See id. § 841(b)(1)(B). The 

resolution of the drug quantity — either way — was exclusively 

the province of the jury. See Alleyne v. United States, 133 S. 

Ct. 2151, 2160 (2013) (instructing that “any ‘facts that 

increase the prescribed range of penalties to which a criminal 

defendant is exposed’ are elements of the crime” that must be 

found by a jury beyond a reasonable doubt) (quoting Apprendi v. 

United States, 530 U.S. 466, 490 (2000)).

At one point during the discussion, the government asked 

the district court to “just . . . tell the jury that 1,000 

kilograms equals 2,200 pounds, because the testimony had been in 

English as opposed to metric units.” J.A. 1692-93. In response 

to the government’s request, counsel for Brown expressed some 

reservations:

COUNSEL: And judge, I don’t have the exact version 

right, but I don’t want some [28 U.S.C. 

§] 2255 lawyer saying it was 2,200 point —

THE COURT: One kilo is 2.2 pounds.
8

COUNSEL: Exactly? There isn’t a few ounces either 

way?

THE COURT: Exactly, I think. That’s the one.

COUNSEL: Well, if that’s a correct statement of the 

law, we have nothing additional.

THE COURT: I think it’s a correct statement on the 

measurement as well.

Id. at 1693. 

The district court, however, turned out to be incorrect: 

2,200 pounds equates to a metric mass of just less than 998 

kilograms, more than two kilograms short of the minimum quantity

necessary to bring into play the possibility of life 

imprisonment under the sentencing statute. In order for the 

court to properly sentence Brown in accordance with the 1,000-

kilogram threshold, the government was required to prove that 

the conspiracy involved a drug weight of at least 2,204.63 

pounds. The jury was presented with no evidence to assist it in 

precisely converting from the English system to its metric 

counterpart the drug quantities of which the witnesses 

testified.2

 2 Prior to being instructed, all the information the jury 

possessed on the subject had been given to them in the form of 

comments and argument from counsel. The first instance involved 

a government witness who had pleaded guilty to conspiring to 

distribute more than 100 kilograms of marijuana. One of Brown’s 

lawyers asked the witness whether he knew how many pounds are in 

a kilogram. When the witness replied in the negative, counsel 

(Continued)
9

The district court’s approval of the government’s request 

was the last word on the matter, and, upon charging the jury the 

next morning, it gave Instruction 48 as follows: “The purpose 

of the conspiracy charged in Count 1 was to distribute, or 

possess with intent to distribute, 1,000 kilograms — that’s 

2,200 pounds — or more of marijuana.” J.A. 1897. Without 

objection, the court proceeded with the remainder of the 

instructions. The jury retired to deliberate afterward, having 

been given the parties’ agreed verdict form, which, among the 

drug quantity options, listed “1000 kilograms (2200 pounds) or 

more.” Id. at 1955.

The jury deliberated for almost two hours, then requested

to view again an excerpt from the video of Brown’s November 3, 

2010 police station interview. About twenty minutes into the 

playback, the government paused the recording so that the 

district court could ask the jury how much of the remainder it 

wished to review. At that point, the court informed the jury

that “I have to step off for a brief period. The recording will 

 

informed him that the amount was approximately 220 pounds. See

J.A. 785-86. The government, for its part, reminded the jury at 

closing argument that Brown had been charged with “a conspiracy 

to distribute more than a thousand kilograms, which is the same 

as 2,200 pounds.” See id. at 1734. Shortly thereafter and 

twice more on rebuttal, the government repeated the same 

erroneous assertion. See id. at 1739, 1856-57. None of the 

government’s misstatements drew an objection from the defense.
10

continue to play in my absence, and [the courtroom clerk] will 

get me if I’m needed.” J.A. 1936. The recording resumed, 

absent the court, for approximately thirty-two minutes. Upon 

the court’s return, Brown moved for a mistrial, which was 

denied.3

On February 19, 2013, the trial having recessed four days 

for the holiday, the jury reached its verdict. The courtroom 

clerk made official inquiry of the jury’s foreperson:

THE CLERK: How do you find the Defendant Jean Brown, 

not guilty or guilty, of the matters 

wherefore she stands indicted as to Count 

[One]?

FOREPERSON: Guilty.

THE CLERK: Okay. And what amount of marijuana was 

involved?

FOREPERSON: 2,200 pounds.

THE CLERK: 2,200 pounds.

FOREPERSON: Or more.

J.A. 1946. The jury also found Brown guilty of Counts Two 

through Four, relating to the kidnapping and murder of Knight.

 3 Inviting our attention to the district court docket, Brown 

expresses her belief that the court “left the bench in the case 

at bar to conduct a sentencing in another unrelated case, in an 

adjacent courtroom.” Br. of Appellant 18 n.3 (citing United 

States v. Chon, No. 1:12-cr-00506 (D. Md. Feb. 14, 2013), ECF 

No. 23).
11

At the sentencing hearing on March 22, 2013, Brown 

maintained that, with respect to her conviction of the marijuana 

trafficking conspiracy, she should not be subjected to the tenyear-to-life term of imprisonment prescribed by 21 U.S.C. 

§ (b)(1)(A). Brown contended that, because of the erroneous 

equivalency instruction and verdict form, the jury had not 

actually found that she had distributed the threshold quantity

of marijuana authorizing a life sentence. The district court 

was unpersuaded, sentencing Brown to life on the Count One

marijuana conspiracy, to concurrent life terms on the 

substantive murder and kidnapping charges in Counts Two and 

Four, and to a concurrent term of 120 months for her conviction 

of the Count Three murder conspiracy. By timely notice filed 

March 28, 2013, Brown appeals her convictions and sentence.

II.

Brown asserts that the district court erroneously permitted 

the jury to view the recorded October 13 and November 3 police 

station interviews. More fundamentally, Brown posits that her 

trial was structurally undermined by the court’s absence while 

the jury listened to the latter interview on playback. Either 

of those supposed irregularities, according to Brown, renders 

her convictions infirm and entitles her to a new trial. Failing 

that, Brown suggests that the uncertainty surrounding the jury’s 
12

verdict as to the drug quantity attributable to the conspiracy 

requires a remand. Specifically, Brown requests that she be 

resentenced on Count One in accordance with the more lenient 

five-to-forty year range set forth in § 841(b)(1)(B) for a 

quantity of marijuana amounting to at least 100 kilograms, but 

less than 1,000.

In evaluating Brown’s appeal of the denial of her motion to 

suppress the recorded police interviews, we review the district 

court’s factual findings for clear error and its legal 

conclusions de novo. See United States v. Williams, 740 F.3d 

308, 311 (4th Cir. 2014). We likewise review de novo 

allegations of structural defects in the trial process, see

United States v. Mortimer, 161 F.3d 240, 241 (3d Cir. 1998). If 

the purported defect is not structural and has not been 

preserved via objection in the district court, we review for

plain error only. See United States v. Love, 134 F.3d 595, 605 

(4th Cir. 1998).

A trial judge’s absence from the bench may, depending on 

the circumstances, constitute a structural error that is 

reversible per se. See Love, 134 F.3d at 604-05 (citing Riley 

v. Deeds, 56 F.3d 1117, 1120 (9th Cir. 1995)); see also

Mortimer, 161 F.3d at 241. An error in contravention of

Apprendi and its progeny, however, is not a structural one. See

United States v. White, 405 F.3d 208, 222 (4th Cir. 2005) 
13

(citing United States v. Carter, 300 F.3d 415, 428 (4th Cir. 

2002)). Irregularities of the Apprendi sort may therefore be 

reviewed for harmlessness, or for plain error if not timely 

objected to in the trial court. See White, 405 F.3d at 223; 

United States v. Mackins, 315 F.3d 399, 408-09 (4th Cir. 2003).

III.

A.

The government could only use Brown’s custodial statements 

at trial insofar as they were made voluntarily, in conformance 

with the Fifth Amendment’s privilege against compelled selfincrimination. See United States v. Braxton, 112 F.3d 777, 780 

(4th Cir. 1997) (en banc). Brown does not contest the validity 

or adequacy of the Miranda warnings administered to her by the 

Baltimore County detectives. Instead, Brown’s assertion of a 

Fifth Amendment violation begins with a uniquely Sixth Amendment 

premise: that the lawyer who represented her in the cash 

smuggling prosecution was constitutionally ineffective by 

failing to accompany her to the police station, where she was 

questioned about uncharged criminal activity. The neglect of 

her Florida counsel, according to Brown, left her helpless 

before the police and rendered involuntary the entirety of her 

statements during the interviews of October 13 and November 3, 

2010.
14

Brown’s theory of involuntariness is not one that we are 

prepared to embrace. Indeed, “[t]he sole concern of the Fifth 

Amendment . . . is governmental coercion.” Colorado v. 

Connelly, 479 U.S. 157, 170 (1986). That is to say, “[t]he 

voluntariness of a waiver of [the Fifth Amendment] privilege has 

always depended on the absence of police overreaching, not on 

‘free choice’ in any broader sense of the word.” Id. Were it 

otherwise, we would risk imposing “a far-ranging requirement 

that courts must divine a defendant’s motivation for speaking or 

acting as he did even though there be no claim that governmental 

conduct coerced his decision.” Id. at 165-66.

Moreover, we routinely decline to address on direct appeal 

a criminal defendant’s contention that counsel has performed in 

an ineffective manner, unless “the lawyer’s ineffectiveness 

conclusively appears from the record.” United States v. 

Bernard, 708 F.3d 583, 593 (4th Cir. 2013). We see no reason to 

depart from such a settled rule, notwithstanding that Brown’s 

suggestion of ineffective assistance does not serve as a standalone Sixth Amendment assignment of error, but is instead 

asserted as a predicate to relief under the Fifth Amendment. 

Although Florida counsel testified at the suppression hearing, 

and, as a result, the record is more thoroughly developed here 

than may be typical for a direct appeal involving a lawyer’s 

performance, we yet cannot say that the materials before us 
15

conclusively establish the truth of Brown’s allegations of 

ineffectiveness. That Brown agreed to be interviewed outside 

the presence of counsel is patently insufficient, as pointed out 

by the Supreme Court in McNeil v. Wisconsin:

One might be quite willing to speak to the police 

without counsel present concerning many matters, but 

not the matter under prosecution. It can be said, 

perhaps, that it is likely that one who has asked for 

counsel’s assistance in defending against a 

prosecution would want counsel present for all 

custodial interrogation, even interrogation unrelated 

to the charge. That is not necessarily true, since 

suspects often believe that they can avoid the laying 

of charges by demonstrating an assurance of innocence 

through frank and unassisted answers to questions.

501 U.S. 171, 178 (1991).

The McNeil Court appears to have captured the essence of 

the case at bar. Brown’s Florida counsel, by not insisting that 

he accompany her to the police station interviews, may well have 

unwittingly enabled his client’s misbegotten belief that she 

could talk her way out of the trouble that was looming. A mere

breakdown in communication between Brown and her lawyer, 

however, does not compel the conclusion that the latter was 

constitutionally ineffective. There being no legitimate basis 

to suppress the recordings of the interviews, the district court 

did not err in admitting them.

B.

With respect to Brown’s assertion of structural error 

emanating from the district court’s vacation of the bench, we 
16

note first that the record reflects no contemporaneous objection 

to the court’s absence. See Fed. R. Crim. P. 51(b) (specifying 

that “[a] party may preserve a claim of error by informing the 

court — when the court ruling or order is made or sought — of 

. . . the party’s objection to the court’s action and the 

grounds for that objection”). A motion for mistrial made 

substantially after the fact is an inadequate substitute for a 

timely objection. See United States v. Brainard, 690 F.2d 1117, 

1122 n.7 (4th Cir. 1982).

Counsel for Brown, without contradiction by the government, 

informed us at oral argument that the trial participants were 

momentarily taken aback by the district court’s departure, which 

occurred without warning and was facilitated by an exit to 

chambers in proximity to the bench. Counsel’s version of events 

recalls those in United States v. Mortimer, in which the 

prosecutor objected to a portion of the defendant’s closing 

argument, then immediately withdrew the objection upon noticing 

that the judge “had indeed disappeared. He had given no notice 

to counsel or the jury that he was about to depart. He was 

simply gone.” See 161 F.3d 240, 241 (3d Cir. 1998). The 

resultant structural defect could not be excused by the 

defendant’s implied consent, manifested by his counsel’s 

determination to forge ahead in the judge’s absence, for, as the 

Third Circuit mused:
17

Before whom was defense counsel to offer consent? 

That defense counsel continued her summation cannot be 

construed as consent. Was she to stop in midsentence 

as it were and wait for such time as the judge should 

reappear? She did her best under the circumstances 

but her carrying on in adversity cannot be turned into 

agreement to the judge’s absence.

Id.; see also Fed. R. Crim. P. 51(b) (instructing that “[i]f a 

party does not have an opportunity to object to a ruling or 

order, the absence of an objection does not later prejudice that 

party”).

Even so, we do not imagine that resourceful counsel would 

necessarily have been stymied if confronted with the undesirable

situation that occurred here. The defense and the prosecution 

should have each realized the peril in which their respective 

cases were placed by the district court’s desertion. As 

officers of the court, either (or preferably both, acting in

concert) would have acted well within his purview by standing 

up, stopping the playback, and having the clerk sequester the 

jurors until the presiding judge could be retrieved. No doubt 

the resultant hubbub would engender a modicum of chaos and 

confusion in the courtroom, but that sort of ephemeral ruckus is 

to be preferred to the lingering spectacle of no one presiding 

over the trial of a federal criminal defendant whose freedom is 

at stake.

In United States v. Love, 134 F.3d 595 (4th Cir. 1998), we 

recognized that the absence of the district court from a portion 
18

of trial is not always a structural defect. The court in Love

left the bench prior to the parties’ closing arguments, 

reassuring the jury that it would be available to rule on any 

objections, though none were ultimately made. On appeal, the 

defendants contended that the court’s departure was error per 

se, entitling them to a new trial. See Riley v. Deeds, 56 F.3d 

1117, 1120 (9th Cir. 1995) (granting writ of habeas corpus to 

petitioner convicted of sexual assault and kidnapping where law 

clerk convened court in judge’s absence to comply with jury’s 

request to read back victim’s testimony). We disagreed:

While we do not condone the absence of the trial judge 

from any phase of the trial proceeding, we reject 

defendants’ attempt to characterize the district 

judge’s absence here as structural error. The Riley

court instead rested its holding on the fact that the 

trial judge there was not only physically absent from 

the courtroom; he did not even make the decision to 

permit relevant testimony to be read back to the jury 

or delineate which portions thereof should be 

presented to it. All of the above functions were 

instead carried out by the judge’s law clerk, as the 

judge could not be located.

Love, 134 F.3d at 604-05. The exacerbating facts in Riley, we 

reasoned, made clear that the Ninth Circuit had premised its 

grant of the Great Writ on the “‘complete abdication of judicial 

control over the process.’” Id. at 605 (quoting Riley, 56 F.3d 

at 1121). We observed that “[t]hose circumstances were not 

present” at the defendants’ trial in Love. Id.
19

Nor were they present at Brown’s trial. Both here and in 

Love, the district court was absent for a relatively short time 

after all the evidence had been presented; no rulings were 

requested during the court’s absence, and, fortunately, nothing 

else of note occurred in the courtroom. In Riley, by contrast, 

the judge’s law clerk granted the jury’s request to read back 

the victim’s testimony, and, in Mortimer, the prosecutor was 

constrained to withdraw his objection when no one in authority 

was there to rule on it. Although our analysis in Love was 

conducted using a plain-error standard of review, meaning that 

the burden was on the defendants to demonstrate that the court’s 

absence affected their substantial rights, see United States v. 

White, 405 F.3d 208, 223 (4th Cir. 2005), the prejudice inquiry 

“is essentially the same as the question whether nonforfeited 

error was harmless,” where the government shoulders the burden, 

id. We are therefore content to say that our decision in Love

compels the conclusion that the error complained of here was 

harmless.

C.

The circumstances surrounding the district court’s sudden 

absence from the bench may have muddied the water in that 

instance as to the need for counsel to have blurted out an 

objection to preserve the irregularity. No similar lack of 

clarity, however, obfuscates our view of the court’s inaccurate 
20

drug quantity instruction and attendant verdict form error that 

are alleged to have led the jury astray. A fair reading of the

trial transcript reveals that counsel for Brown identified the 

potential pitfall of the English/metric conversion rate, but 

then deferred to — and ultimately accepted without further 

question — the court’s resolution grounded in its imperfect 

recollection.

The court of appeals in Lamb Enterprises, Inc. v. Toledo 

Blade Co., 461 F.2d 506 (6th Cir. 1972), addressed an analogous 

situation. In Lamb, a private antitrust action, the plaintiffs 

took issue with the district court’s proposed instruction 

conditioning the defendants’ liability under Section 2 of the 

Sherman Act on a finding of conspiracy to monopolize their local 

cable television market, excluding the alternative bases that 

any single defendant actually attained a monopoly or attempted 

to do so. Counsel for the plaintiffs maintained that “Section 2 

is violated even in the absence of a combination or conspiracy 

of two or more of the defendants.” Id. at 520. Asked to 

respond, their counterparts on defense acknowledged that “a 

single defendant can violate Section 2 of the Sherman Act, and 

we would not contend to the contrary.” Id.

The district court, however, appeared to misapprehend the 

gist of the discussion, perhaps surmising that the plaintiffs 

sought to clarify that the jury would be within its rights to
21

return a conspiracy verdict against just one of the several 

defendants. In any event, the court opined that language 

elsewhere in the instructions directing the jury to evaluate the 

liability of each defendant by its own acts, or by “any 

individual or in combination with each other,” was sufficient to 

allay the plaintiffs’ concerns. Id. On appeal, it was noted 

that “counsel did not then inform the [trial] Court of any 

objection to the wording of the charge, to let the Court know 

that the charge still may have been unsatisfactory.” 461 F.2d 

at 520. Consequently, the Sixth Circuit ruled that counsel for 

the plaintiffs “acquiesced in the [district] Court’s view of 

these instructions.” Id. 

The same result obtains here. As to the unconsummated 

preservation of the asserted Apprendi error, we may say that 

Brown cast her bait, reeled in her catch, then — deeming it too 

insubstantial to keep — threw it back. It would have been a 

simple matter indeed for someone in the courtroom to have used a 

cell phone, computer, or even an old-fashioned printed reference 

to quickly and authoritatively ascertain the accurate conversion 

calculation of a pound to a kilogram, of which the district 

court could have properly taken judicial notice. That someone 

did not surely indicates that all parties were content with the 

court’s flawed methodology. Moreover, Brown lent her imprimatur 

to the verdict form submitted by the government that contained
22

the same misinformation. See J.A. 1715-16; cf. Nehi Bottling 

Co., Inc. v. All-American Bottling Corp., 8 F.3d 157, 164 (4th 

Cir. 1993) (upholding jury verdict premised on unclear 

instructions where appellant “not only failed to object to the 

instructions, [but] actually approved them”). Having failed to 

interpose a proper objection, Brown may be resentenced on Count 

One only if the district court’s drug quantity instruction 

constituted plain error.

Thus, to obtain relief, Brown must demonstrate “that the 

district court erred, that the error was plain, and that it 

affected his substantial rights.” United States v. Robinson, 

627 F.3d 941, 954 (4th Cir. 2010) (citing United States v. 

Olano, 507 U.S. 725, 734 (1993) (internal quotation marks 

omitted)); see Fed. R. Crim. P. 52(b) (providing that “[a] plain 

error that affects substantial rights may be considered even 

though it was not brought to the court’s attention”). If the 

initial three Olano prongs are met, we yet possess “discretion 

whether to recognize the error, and should not do so unless the 

error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Dyess, 

730 F.3d 354, 361 (4th Cir. 2013) (citation and internal 

quotation marks omitted).

We have adhered to the Supreme Court’s admonition that 

“Apprendi errors under § 841(b) should not be recognized on 
23

plain error review when the evidence as to drug quantity was 

‘overwhelming’ and ‘essentially uncontroverted.’” Dyess, 730 

F.3d at 361 (quoting United States v. Cotton, 535 U.S. 625, 633 

(2002)). When the evidence admits of only one result, there is 

simply “‘no basis for concluding that the error seriously 

affected the fairness, integrity or public reputation of 

judicial proceedings.’” United States v. Mackins, 315 F.3d 399, 

408 (4th Cir. 2003) (quoting Cotton, 535 U.S. at 633 (internal 

quotation marks and alteration omitted)). In Dyess and Mackins, 

as has become our practice in cases like Brown’s involving an 

obvious Apprendi error that fulfills the initial two Olano

prongs, we deferred an examination of the third — whether the 

error affected the defendant’s substantial rights — in favor of 

asking ourselves whether, in accordance with Cotton, we would in 

any event choose to exercise our discretion under the fourth 

prong to correct the error.

In the case at bar, the government presented evidence that 

Brown began to traffic in marijuana soon after her arrival in 

Baltimore in 2000, see J.A. 804, and that she continued to do so 

in earnest for the next ten years, until shortly before her 

arrest in 2010. The quantities were relatively modest — albeit 

substantial — during the first year or so, amounting most months 

to perhaps 200 to 500 pounds. See id. By 2005 or 2006, the 

monthly quantity had increased substantially, to about 500 to 
24

1,000 pounds. See id. at 811. According to several of her coconspirators (including Blake and Downer), Brown confided to 

them during the later years of her operation that she bought and 

sold from 1,000 to 2,000 pounds of marijuana each month. See

id. at 444, 478, 630. The government’s evidence was 

uncontroverted except for Brown’s denials, which were obviously 

given no credence by the jury.

Even were we to afford Brown every benefit of the doubt, 

the government proved that the conspiracy trafficked in tens of 

thousands of pounds of marijuana over its ten-year course, 

amounting to many multiples of the quantity required to impose a 

life sentence. That reality was hardly lost on the jury, whose 

foreperson made it a point in open court to respond in kind to 

the clerk’s oral verification of the 2,200 pounds indicated in 

writing on the verdict form by speaking the two words: “Or 

more.” We are therefore persuaded that Brown’s sentence is not 

among those contemplated by Cotton as one that we should choose

to disturb.

IV.

Pursuant to the foregoing, we are satisfied to affirm 

Brown’s convictions and sentence.

AFFIRMED