United States of America v. Keith Brown

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2024
Decided May 2, 2024
Before
DIANE S. SYKES, Chief Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 22-1855
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH BROWN,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 17-cr-467-1
Robert M. Dow, Jr.,
Judge.
O R D E R
Keith Brown was charged with unlawful possession of a firearm by a felon. At
trial, the jury deadlocked, and the district judge declared a mistrial. Brown was then
tried again, with added charges including attempted obstruction of justice and perjury,
both based on the allegation that he testified falsely at the first trial. The jury
deadlocked again on the firearm-possession charge but found him guilty on the other
charges, and the judge denied his motion for a judgment of acquittal. On appeal, Brown
challenges the sufficiency of the evidence supporting his convictions, contending that
the government did not prove that he had the requisite state of mind or that his false
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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statements were material. We conclude that the evidence was sufficient to support the
convictions and therefore affirm the judgment.
I.
On February 6, 2016, a police dispatcher broadcasted a report of three males
“with guns on their waistband” arguing with three other males inside a barbershop in
Chicago. Officers Lukasz Gorski and Alexander Kulisek responded to the call. As the
officers entered the barbershop, two men immediately walked toward the back of the
shop, and one of them threw a handgun into a bathroom. The officers followed the two
suspects through the back door and into the lot behind the shop. During the pursuit,
Officer Gorski saw one of the men, later identified as Keith Brown, throw a handgun
over a fence. The officers eventually apprehended Brown and the other fleeing man and
found a .40 caliber semiautomatic pistol with an extended magazine in the alley
adjacent to the fence.
The government charged Brown with one count of being a felon in possession of
a firearm, and he proceeded to trial. Brown testified in his own defense that he did not
have a gun at the barbershop and was not inside the shop when the officers arrived.
According to Brown, shortly before the officers arrived, he received a call from his
fiancée, who was incarcerated in the Cook County Jail. Brown said he went out to the
back lot to talk on the phone. About five or ten minutes later, Brown—still speaking to
his fiancée—observed two men run out of the shop while being chased by police
officers. At this point, Brown testified, one of the officers ordered him to the ground and
arrested him.
The jury could not reach a unanimous verdict, and so the judge declared a
mistrial. Afterward, the government investigated Brown’s assertion that he was on the
phone with his fiancée when officers arrived at the barbershop. The government
reviewed phone records from Cook County Jail and found that Brown’s fiancée had
indeed called him on February 6, 2016. The call, however, ended approximately 15
minutes before the police dispatcher broadcasted the report about the barbershop and
20 minutes before the officers began chasing the two men from the shop.
Based on this evidence, the government obtained a superseding indictment.
Brown was charged with attempted obstruction of justice in violation of 18 U.S.C.
§ 1512(c)(2) and perjury in violation of 18 U.S.C. § 1623, along with the unlawful
possession of a firearm by a felon count from the original indictment and a fourth count

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for unlawful possession of ammunition by a felon, in connection with a separate
incident. Brown pleaded not guilty again and proceeded to trial.
At the second trial, the jury heard testimony that contradicted Brown’s assertions
from his first trial. Officer Gorski testified that he observed Brown throw a firearm over
the fence. And Officer Kulisek testified that Brown was not on the phone and did not
have a phone in his hand at the time of his arrest. Additionally, an investigator from the
Cook County Department of Corrections testified that the call between Brown and his
fiancée ended about 15 minutes before the police dispatcher broadcast the report
concerning the barbershop.
Brown testified in his defense again. This time, he said that he had been on the
phone with someone other than his fiancée when the police officers arrived. But he
testified that he could not remember who he was talking to, lost the phone when he was
arrested, and could not recall the number associated with that phone. In explaining his
testimony from the first trial, Brown said that he misidentified his fiancée as the person
who was on the phone.
The second jury could not reach a unanimous decision on the firearm-possession
count either, but it found Brown guilty on the obstruction and perjury counts. (The jury
also found Brown guilty of unlawfully possessing ammunition, but because he does not
challenge this conviction on appeal, we do not discuss it further.)
After the verdict, Brown moved for a judgment of acquittal under Rule 29(c) of
the Federal Rules of Criminal Procedure. He argued that the government failed to
present sufficient evidence that he intentionally made false statements at his first trial or
that any falsehoods were material, and thus he could not be found guilty of attempted
obstruction of justice and perjury. According to Brown, the government did not
establish that the statements he made at the first trial were anything but honest
mistakes.
The judge denied the motion. He explained that the jury heard Brown’s version
of events along with his testimony from the first trial, and these accounts differed
substantially. Further, other evidence contradicted Brown’s assertions at the second
trial: the officers testified that Brown fled the barbershop, that he was not on the phone
immediately before the officers arrived or when they arrested him, and that he threw a
gun over the fence. Noting that the jury was not obligated to accept Brown’s
explanation that the discrepancies between his testimony at the first and second trials

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were mere mistakes, the judge concluded that the government presented sufficient
evidence that Brown intended to deceive the first jury by giving what amounted to a
false alibi.
The judge later sentenced Brown to 104 months’ imprisonment and 36 months’
supervised release. He timely appealed.
II.
On appeal Brown challenges only the denial of his Rule 29 motion, contesting the
sufficiency of the evidence that he intentionally testified falsely about a material issue at
the first trial. In raising a sufficiency-of-the-evidence challenge, Brown faces a heavy
burden. See United States v. Farmer, 38 F.4th 591, 602 (7th Cir. 2022), cert. denied, 143 S. Ct.
841 (2023). We will set aside the jury’s verdict only when, viewing the evidence in the
light most favorable to the government, “the record contains no evidence, regardless of
how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” Id.
(quoting United States v. Amaya, 828 F.3d 518, 523–24 (7th Cir. 2016)). When there are
competing versions of events, the choice of what to believe is for the jury, not the court.
Id. (“We can neither reweigh the evidence nor reassess witness credibility.”).
Brown first argues that the government did not prove that he had the requisite
state of mind to be found guilty of either attempted obstruction of justice or perjury. As
to obstruction, the government had to prove that Brown attempted to obstruct,
influence, or impede an official proceeding, and that he did so “corruptly.” 18 U.S.C.
§ 1512(c)(2). The “corruptly” element requires proof of a “willful” mens rea, and thus it
“serves to separate criminal and innocent acts of obstruction.” United States v.
McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (quoting United States v. Matthews, 505 F.3d
698, 705 (7th Cir. 2007)). With respect to perjury, the government had to prove Brown’s
willful intent to provide false testimony on a material matter. United States v. Dumeisi,
424 F.3d 566, 582 (7th Cir. 2005).
Here, Brown concedes that he provided false testimony at his first trial, but he
argues it was an innocent mistake, not the product of a willful intent to mislead. Yet, he
does not explain why this is the only rational interpretation of the evidence—a
requirement to successfully mount a sufficiency-of-the-evidence challenge. See Farmer,
38 F.4th at 602. Intent can be established by circumstantial evidence and reasonable
inferences. See, e.g., United States v. Pust, 798 F.3d 597, 600–01 (7th Cir. 2015). And here,
when viewed in the light most favorable to the government, the record contains ample

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evidence from which a rational jury could infer that Brown corruptly and willfully
intended to deceive the first jury. See United States v. Godinez, 7 F.4th 628, 638–39 (7th
Cir. 2021).
For example, once the government established that Brown could not have been
on the phone with his fiancée when officers arrived at the barbershop, Brown changed
his story to an account so vague that the jury could certainly disbelieve it. He testified at
the second trial that he could not recall with whom he was talking to on the phone. Nor
could he recall the whereabouts of the phone or even the phone’s number. Any of this
information could have been used to prove or disprove his account—just as the
information he provided at the first trial did—and so the jury could reasonably infer
that the memory lapses were not genuine. On top of that, Brown’s misstatements from
his first trial concern specific details of his alibi; namely, his whereabouts when the
officers arrived at the barbershop and what he was doing when the officers chased the
suspects leaving the shop. The second jury could have reasonably inferred that Brown
provided a detailed account of the events at the first trial for the purpose of convincing
the first jury that he was telling the truth.
Brown also suggests that the jury could not rationally find him guilty of
attempted obstruction of justice without also finding him guilty on the
firearm-possession charge. Because the jury did not believe that he had possessed a
firearm, Brown’s argument goes, it could not logically believe that he lied about his
explanation for why he did not possess the firearm. In this way, Brown posits that the
jury’s verdict is inconsistent. But it is inaccurate to describe the verdicts here as
inconsistent: the second jury found that Brown intentionally deceived the first jury to
influence its verdict. This did not obligate the second jury to reach a guilty verdict on
the firearm-possession charge, which was based on a different body of evidence
(including inconsistent testimony from the police officers) not limited to Brown’s
testimony. A rational jury could find, regardless of whether Brown possessed a firearm,
that the story he presented at the first trial was a lie intended to mislead the first jury.
Brown retorts that no one would tell such a lie because it is well known that all phone
calls are recorded at the Cook County Jail, and he could have been easily exposed.
Maybe so. But to the extent that Brown asks that we reassess his credibility, that is not
our role on appeal. See Farmer, 48 F.4th at 602.
Last, Brown challenges the sufficiency of the evidence on another element of
perjury: the materiality of his admittedly false statements at the first trial. See 18 U.S.C.
§ 1621; United States v. Burge, 711 F.3d 803, 812 (7th Cir. 2013). His false testimony was

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material if it had “a natural tendency to influence or was capable of influencing, the
decision” of the jury deciding, at the first trial, whether he possessed a firearm. Burge,
711 F.3d at 812 (quoting Neder v. United States, 527 U.S. 1, 16 (1999)).
Brown’s argument rests on the premise that he made only one false statement at
his first trial—that he was talking to his fiancée at the time the officers arrived. From
there he contends that the identity of the person he was supposedly on the phone with
is irrelevant to whether he possessed a gun. Contrary to Brown’s assertion, the
superseding indictment cataloged a host of false statements beyond the identity of who
he was supposedly talking to, including, being outside the barbershop at the time the
officers arrived, never running from the officers, and not possessing or throwing a gun.
These statements supported Brown’s defense that the officers arrested him for no
reason and contradicted the primary evidence of his guilt: the officers’ testimony that he
was in the shop, ran out when they arrived, and tossed a gun as he fled. Therefore, the
false statements would naturally tend to exonerate Brown because if he had been
outside on the phone with his fiancée, he could not have been inside, and then chased
out of, the barbershop. See Burge, 711 F.3d at 813. That makes the statements material.
The misstatements were further material because they affected Brown’s
credibility. After the inaccuracy of the testimony was confirmed, Brown was left at the
second trial with a vague and less plausible account of the evening’s events. His
inability to say who he was talking to, the whereabouts of the phone he was using, or
the number associated with it could have reasonably influenced the second jury’s view
of his credibility—something he avoided at the first trial by providing a false, but more
detailed, account.
For these reasons, we AFFIRM.

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