Donald Floyd Brown v. United States
533 F. App'x 881
11th Cir.2013Background
- Brown was convicted of attempted robbery of a credit union (18 U.S.C. § 2113(a), § 2) and possession of an unregistered short-barreled shotgun (26 U.S.C. § 5861(d), § 5841, § 2).
- Evidence showed Brown and a codefendant intended to rob a credit union but were arrested before entering the building; the government presented no evidence Brown actually used force, violence, or intimidation.
- At trial the jury was instructed that attempted robbery required the defendant to intend the substantive crime (taking by force, violence, or intimidation) and to take a substantial step toward it.
- On direct appeal Brown argued the government had to prove actual force, violence, or intimidation (not merely an attempt to intimidate); the court reviewed for plain error and rejected the claim due to lack of controlling precedent and circuit split.
- Brown filed a § 2255 motion alleging ineffective assistance of trial counsel for failing to (1) argue the government needed to prove actual force/violence/intimidation, (2) object to jury instructions that allegedly amended the indictment, and (3) argue the § 5861(d) firearm-knowledge element; the district court denied relief but issued a COA for the first two issues.
- The Eleventh Circuit affirmed, concluding Brown failed to show Strickland prejudice for the first two claims and declining to expand the COA on the third claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction for attempted robbery under § 2113(a) required proof the defendant actually used force, violence, or intimidation (not just attempted intimidation) | Brown: trial counsel was ineffective for not arguing the government must prove actual force/violence/intimidation; appellate counsel lost an otherwise valid claim | Government: no controlling precedent required; circuit authority is divided and majority disfavors Brown’s position; counsel not ineffective absent clear controlling law | Denied — Brown did not show Strickland prejudice; speculative that district court would have resolved novel issue in his favor; affirmance of § 2255 denial |
| Whether failure to object to jury instructions that allegedly allowed conviction without finding actual force/violence/intimidation constructively amended the indictment | Brown: counsel’s failure to object permitted a constructive amendment of the indictment by broadening bases for conviction | Government: lack of controlling authority; even if instruction was erroneous, Brown cannot show prejudice at trial | Denied — no Strickland prejudice; constructive amendment claim fails for same reasons as first claim |
| Whether trial counsel was ineffective for failing to argue § 5861(d) required proof Brown knew the firearm’s characteristics | Brown: trial counsel should have challenged mens rea for firearm’s characteristic | Government: outside scope of COA; district court denied; appellate court declined to expand COA to reach merits | Not reached on merits — motion to expand COA denied; claim outside COA scope |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
- Purvis v. Crosby, 451 F.3d 734 (11th Cir. 2006) (prejudice measured by effect on trial factfinder, not on appeal)
- Davis v. Sec'y, Dep't of Corrs., 341 F.3d 1310 (11th Cir. 2003) (rare ‘‘razor thin’’ exception measuring prejudice by likelihood of better outcome on appeal)
- United States v. Ward, 486 F.3d 1212 (11th Cir. 2007) (constructive amendment doctrine describes per se reversible error when indictment elements are broadened)
- Devine v. United States, 520 F.3d 1286 (11th Cir. 2008) (standard of review for § 2255 appeals)
- Dell v. United States, 710 F.3d 1267 (11th Cir. 2013) (Strickland reviewed de novo on both prongs)
- Gallo-Chamorro v. United States, 233 F.3d 1298 (11th Cir. 2000) (absence of controlling authority does not automatically preclude finding deficient performance)