YElaine Brown

Petitioner

V.

IN THE UNITED STATES OF AMERICA

DISTRICT COURT OF NEW HAMPSHIRE

Case No. 09-cr-30-02-GZS

United States of America

Repondent

MOTION TO VACATE SENTENCE IN LIGHT OF FED.C. RULE 52(b)

COMES NOW Elaine Brown, Petitioner, pro se, respectfully requesting this

Honorable Court reconsider petitioner's sentence in light of Rule 52(b).

The petitioner claims a plain error so egregious that it affects her substan

tial right, whereas, the integrity and fairness of the trial proceedings

fall short.

Petitioner not only should have been evaluated for her mental capacity, but

also for her physical capacity, considering the circumstances around the

conviction and the height of the events that occurred.

In U.S. V. Miranda (1972, CA2 NY) 437 F. 2nd 1255, movant raised detailed and

controverted issues of fact, such as petitioner in the this case warranting

a hearing. There is also no evidence of a hearing to address the issue of

diminished capacity or physical capacity at any stange of the judicial process

including post conviction relief, even though stand-by counsel requested such.

It seems appropriate that the federal court should grant such a hearing at this

time. Owsley V. Cunningham (1961 Ed. VA) 190 F. Supp. 608.

Procedural History

On 1/21/09, the Government returned a sealed indictment charging Petitioner

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with Count One (1), 18 USC§372; Count Two(2), 18 USC§371 and lll(a)&(b); Count

Four (4), 18 USC§924(c)(l)(A)(i)&(ii) and 924(c)(1)(B)(11); Count Six (6), 18

USC§922(g)(l) and 914(a)(2); Count Eight (8), 18 USC§1503; and Count Eleven (11)

18 USC§3416(a)(l)&(b)(l)(A)(ll).

Initial appearance and arraignment for Petitioner was held 2/19/09, where a

plea of not guilty was entered and ;the matter was set for trial. Trial com

menced 6/30/09, and Petitioner was found guilty on Counts 1,2,4,6,8,11. Brown

(02) was sentenced to a term of Imprisonment of 420 months followed by 3 years

supervised released. A Direct Appeal was filed and the U.S. Court of Appeals

confirmed the conviction.

The Petitioner would first like to address the Interpretation of the federal

statute that prohibits using a firearm during and In relation to a "crime of

violence" 18 USC§924(c)(l)(A).

Section ti2i>§924(c)(l)(a) set out a mandatory minimum for "any person who, during

and In relation to any crlmeof violence or drug trafficking... uses or carries

a firearm, or who. In furtherance of any such crime, possesses a firearm."

In this particular case the Petitioner's mere presence In the home or proximityJ

to the alleged crime of violence does not by Itself demonstrate that she should

have been found guilty under 924(c)(1)(A) or 924(c)(1)(B), as she did not use

or carry a firearm, nor did she In furtherance of any such crime, possesss a

firearm.

With respect to the United States Supreme Court's determination concerning

18 USC§(c)(1), which Imposes, In addition to any punishment for the predicate

offense, a mandatory 5-year sentence, and a 30-year sentence consecutive sen

tence upon a person'Jwho uses or carries a firearm during and In relation to a

crime of violence - that "use" Is limited to active employment of a firearm,

and "carries" applies to a person who knowingly possesses a firearm In further

ance of a crime.

The terms "use" and "carry" retain Independant meanings as (1) use of a gun

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involves to the displaying, bartering, striking with, firing or attempting to

fire a firearm; (2) carrying a gun does not necessarily involve the gun's

active employment, but carrying of a firearm on the person, or in a vehicle,

or locked glove compartment or trunk of a car, which a person accompanies.

Brown could not have "actively employed a firearm at any time because she was

unable to stabilize a firearm in her hand, due to the fact that her left wrist

was broken, and she was in pain. She would not have been able to withstand the

weight of the weapon because of weakness, less of use, and extreme pain which

any pressure on it would produce. (EXHIBIT 1). However, the indictment (EXHIBIT 2)

states (Pg IDll,kk);

On or about October 4, 2007, defendant, Elaine Brown, held an assault rifle

while in the presence of undercover Deputy US Marshals.

The aforementioned assault rifle was held by Mr. Brown, not by Petitioner, as

she could not have held it.

The Petitioner left the home as the court ordered, and stayed with her son on or

around January 8 to February 20, 2007. During that time she maintained phone

contact with her husband/co-defendant. This was a time of great emotional up

heaval for Mrs. Brown. She was torn between loyalty to her husband and obedience

to the judge's order to remain away from her home. Mr. Brown made repeated

attempts for Mrs. Brown to join him, at one point telling her she was a coward,

and he would "see you on the other side." These repeated outbursts led her to

seek a physician's care for panic attacks she was now experiencing.

The decision she made to return to her husband was, in retrospect, not the

wisest one, but the only one she felt she could make under the circumstances.

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At the time she returned, Mr. Brown was alone in the house, with no weapons.

However, with time, many people came of their own will, none were solicited

or invited. It wasn't until after June 7, when Danny Riley was fired upon by

US Marshals, did weapons come in, and Petitioner later discovered what was devel^pdng. She had no prior knowledge, no control, no proprietary role; she did

not approve or participate. In fact. Petitioner regrets her contact with her

husband so that he could threaten, intimidate and coerce her back into the home.

It is no doubt that Mr. Brown exerted, intentionally, pressure to make Petitioner

fearful or apprehensive, and he used that moral pressure to constrain her to

things against her will, things that she otherwise would not do. Brown v.

Sweeney, 526 F. Supp.2d 126, 134 (D. Mass. 2007). Mrs. Brown was an outstanding

citizen who had always given to the community. Her accomplishments include:

Mrs. Brown educated herself as a dental hygienist, then ten years later,

at the age of 32, applied to and was accepted at Tufts Dental School in

Boston. She built a successful dental practice in Massachusetts, later

moved to New Hampshire, where in 1992, she again built a successful

practice in Lebanon, NH. In 2000, Mrs. Brown obtained her master herbalist

certification from The School of Natural Healing in Utah, concluding two

years of home study and a week in Utah of lectures and testing. She then

opened an herb shop in her office building, which also held workshops

on natiiral health and healing. Dr. Brown also applied her knowledge of

heroai remedies in her practice v^ien she could, given the limited op

portunities of her profession. She was always concerned with the health

of her patients, and was one of the first dentists to cease the use of

mercury fillings in her patients' teeth, in 1997.

The prosecution in United States v. Brown 09-cr-30-GZS, could not prove beyond

a reasonable doubt either actual or constructive possession. Actual possession

occurs when an individual "knowingly has direct physical control over an object

or thing." Constructive possession has consistently been defined as "when a

person knowingly has the power and intention at a given time to exercise domi

nion over an object either directly or through others." United States v. McLean

409 F.3d 501 (1st Cir. 2005). See also United States v. Nieves-Burgos 62 F.3d

431, 437, 438 (1st Cir. 1995); United States v. Garcia 983 F.2d 1160, 1164

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(1st Cir. 1993). Constructive possession "can be established through circumstantial

evidence, thou^ mere possession or association with another who possessed contra

band (in this case the firearms) is insufficient. United States v. DeCologero

530 F.3d 36, 67 (1st Cir. 2008).

Constructive possession is shown if defendant knowingly had the power and intention

to exercise "dominion and control over a firearm directly or through others,"

United States v. Sanchez-Badillo, 540 F.3d 24, 21 (ISt. Cir. 2008). Instead, the

Government must show "some action, some word, or some conduct that links the

individual to the contraband and indicates that he had some stake in it, some

power over it." See United States v. McLean 409 F.3d 492, 501 (1st Cir. 2005.)

In this case, it cannot be found that the Petitioner had direct control because

she did not have the physical capacity to handle a firearm, nor did she have the

power, intention, or knowledge of operation, because it is now clear that Mr.

Brown maintained the power throughout the entire ordeal, and coerced Mrs. Brown

into staying in the home. When she returned to her home there was no evidence

of weapons, nor at the time that she gained knowledge of her co-defendant's

intentions, was there time to withdraw. Rosemond v. United States (12-895 3/5/14).

It can be said that while the marshals were outside of the home fearful as to

the unexpected, Mrs. Brown was inside the home equally fearful and could not

influence her husband to refrain from acquiring weapons or to surrender.

Therefore, based on new evidence, and the aforementioned facts, a rational jury

would not be able to find Mrs. Brown guilty beyond a reasonable doubt. The

follo^^Tig inferences could not have been drawn:

1) That Petitioner had knowledge of the firearms and ammunitions that were

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being brought into the home.

2) That Petitioner had the power to exercise dominion and control over the

firearms and ammunitions.

3) That Petitioner had the intention of exerting dominion and control over

the firearms and ammunition if needed.

4) That Petitioner did use or carry a firearm.

5) That Petitioner had time or opportunity to withdraw, and

6) That Petitioner possessed a firearm in furtherance of a violent crime.

Additionally, the Petitioner would like to put before this Honorable Court

that under 18 USC§3661 "no limitation can be placed on a sentencing court's

power to consider the defendant's background, character, and conduct."

Petitioner has stated she was always considered to be an outstanding citizen.

She was 68 at the time of sentencing. She will be 101 when her sentence is

complete. It questions whether this significant sentence would serve the

goals of sentencing. This prison term will very well outlive the Petitioner.

It is nothing short of life imprisonment. She would ask this Court to

consider her history, characteristics, as well as her rehabilitation over the

past 7 years in FBOP custody. Just as Mrs. Brown was an outstanding citizen,

she has been an outstanding inmate. (EXHIBIT 3). She has availed herself of

FBOP programming. (EXHIBIT 4). The Petitioner is an exemplary candidate for

a reduction in sentencing, and would ask the Court to take into consideration

reducing her sentence pursuant to Pepper v. United States 88 CrL (US 2011),

and §3553(a)(l)(2)(A)(B)(C). The parsimony provision requires that a sentence

be sufficient, but not greater than necessary. When the Court takes into

consideration Specific Offender Characteristics, such as age 5H1.1, Education

and Vocational Skills 5H1-2, and Physical Condition 5H1.4, along with studies

that show the decreased rate of recidivism in the elderly, home detention may

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be as efficient as, and less costly than, imprisonment. Further,Mrs. Brown

has apologized publicly (EXEIIBIT 5), and the community has received it well.

She has also apologized to the Court.

In conclusion, the Petitioner felt trapped. Affidavits from her family

(EXHIBITS 6, 7, 8) will show that because of Mr. Brown's intimidation that

enhanced her of being disloyal, she was coerced into staying in a bad

situation. The truth is she wanted out but feared repercussions. Mrs. Brown

was working hard to provide for her family, while Mr. Brown sat at home and

was of little help. The Petitioner is actually innocent of Count 4, and is

only guilty of making a bad decision in men. This sentence is a death sen

tence as her health is declining and she is receiving inadequate health care.

Now at age 74 ithe Petitioner feels her self weakening, and humbly asks the

Court to review her sentence in light of hte aforementioned reasons.

Respectfully submitted.

Elaine Brown

Petitioner, pi^o se

CERTIFICATE OF SERVICE

This certifies that I, Elaine Brown, have sent by First Class US Mail, two copies

of this document to the District Court of New Hampshire, 55 Pleasant St., Concord,

NH 03301 on this date.

Date

Elaine Brown '

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