U.S. v. Jones

• Decision Date: 12 March 1997
• Docket Number: No. 94-5913,94-5913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessie JONES, Jr., Defendant-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 668

108 F.3d 668

UNITED STATES of America, Plaintiff-Appellee, v. Jessie JONES, Jr., Defendant-Appellant.

No. 94-5913.

United States Court of Appeals, Sixth Circuit.

Reargued June 12, 1996.

Decided March 12, 1997.

Before: MARTIN, C.J., and MERRITT, KENNEDY, JONES, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, and COLE, Circuit Judges, sitting en banc.

BATCHELDER, J., delivered the opinion of the court, in which MERRITT, KENNEDY, NELSON, BOGGS, NORRIS, SUHRHEINRICH, and SILER, JJ., joined. RYAN, J. (pp. 673-77), delivered a separate concurring opinion, in which MARTIN, C.J., JONES, DAUGHTREY, MOORE, and COLE, JJ., joined.

BATCHELDER, Circuit Judge.

Jessie Jones, Jr., appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Supp.1996). A panel of this court vacated the conviction and remanded this case for a new trial. United States v. Jones, 65 F.3d 520, 524 (6th Cir.1995). We granted the government's petition for a rehearing en banc, United States v. Jones, 73 F.3d 616 (6th Cir.1995), and, for the reasons enumerated below, we AFFIRM Jones's conviction.

I. FACTS AND PROCEDURAL HISTORY

A federal grand jury indicted Jones for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Supp.1996). His case proceeded to a jury trial, where he pleaded not guilty. At the commencement of trial, Jones stipulated with the government that he was "a prior convicted felon for the purposes of this trial."

The district court, prior to opening statements, informed the jury that

the defendant and the government have agreed or stipulated that the defendant is--or was, in fact, a convicted felon at the date alleged in the indictment. The defendant agrees that he was convicted of a felony prior to the date alleged in the indictment, so that element of the case has been proven. So you will consider that--by agreement, that the government has proven that aspect of the case.

During the course of the trial, Jones testified that he had previously been convicted of seven felonies, and denied that he was contesting his convicted-felon status. He emphasized that his theory of the case was that he never possessed a weapon.

At the conclusion of the evidence, the district court gave the following instruction, which is the focus of this appeal:

The first element you must find beyond a reasonable doubt before you can convict the defendant is that the defendant had been convicted of a felony in a court of the United States or any state prior to the date he is charged with possessing a firearm. To satisfy the first element, you need only find that defendant was, in fact, convicted of a felony and the conviction was prior to the receipt or possession of the firearm charged in this case. Defendant admits that he was convicted of a felony prior to the date alleged in the indictment, so this element of the offense has been proven. Since defendant admits that he was previously convicted of a felony, you will find that the government has established this element of the offense, and you will proceed to determine if the government has proven the remaining elements of the offense.

(emphasis added). Jones did not object to this instruction at trial. The case was submitted to the jury, which returned a guilty verdict. Jones subsequently filed this timely appeal.

II. ANALYSIS

"This circuit has set a high standard for reversal of a conviction on the grounds of improper instructions." United States v. Sheffey, 57 F.3d 1419, 1429 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996). Because Jones raised no objection to the instruction at trial, our review is limited to one for plain error. See FED.R.CRIM.P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."); United States v. Sherrod, 33 F.3d 723, 724 (6th Cir.1994).

In United States v. Thomas, 11 F.3d 620 (6th Cir.1993), a panel of this court had occasion to consider thoroughly the Supreme Court's explication of the elements of a Rule 52(b) analysis. See United States v. Olano, 507 U.S. 725, 731-36, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993). We concluded that our inquiry under Rule 52(b) consists of the following four distinct, though interrelated, analyses: (1) whether an error occurred in the district court; (2) if error occurred, whether the error was plain; (3) if the error was plain, whether the plain error affected substantial rights; and (4) "even if all three factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b), or in other words, we must decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings." Thomas, 11 F.3d at 630. Additionally, our evaluation of claimed error must be done "in light of the entire trial record." United States v. Wilkinson, 26 F.3d 623, 625 (6th Cir.1994) (citing United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985)).

A. OCCURRENCE OF ERROR

Jones claims that the instruction to the jury that "you will find that the government has established this element of the offense" was a deviation from the legal rule preventing a directed verdict for the prosecution. As a general rule, a verdict cannot be directed in favor of the prosecution no matter how strong the evidence against the defendant. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355-56, 51 L.Ed.2d 642 (1977); United States v. Prujansky, 415 F.2d 1045, 1048 (6th Cir.1969). At least three theories, however, have recently been advanced to explain why, in a case such as this, the district court's instruction is not error at all. These theories include: (1) waiver, see United States v. Mason, 85 F.3d 471, 472-73 (10th Cir.1996) (holding that since guilty pleas and wholesale waivers of the right to a jury trial do not run afoul of the Sixth Amendment, a defendant can waive constitutional rights on single elements through stipulations; such action does not result in a directed verdict because "the judge has not removed the consideration of an issue from the jury; the parties have"); see also United States v. Jones, 65 F.3d 520, 526 (6th Cir.) (Matia, J., dissenting), vacated and reh'g en banc granted, 73 F.3d 616 (6th Cir.1995). But see United States v. Muse, 83 F.3d 672, 679 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996) ("[O]nce a defendant pleads not guilty to a crime and elects to proceed before a jury, the district court must instruct, and the jury must consider, whether the government has proved beyond a reasonable doubt all the elements involved in the crime charged--even if the defendant and the government have entered a stipulation as to certain of those elements."); (2) a stipulation-exception to the general rule against directed verdicts in criminal cases, see Jones, 65 F.3d at 525 (Matia, J., dissenting) (relying on Prujansky, 415 F.2d at 1048 (acknowledging that proof must be presented and the jury instructed "on all elements of the alleged crime unless the parties otherwise stipulate ") (emphasis added)). But see Muse, 83 F.3d at 680 ("The government is entitled to have the court inform the jury of the powerful effect of a stipulation but a court cannot direct a verdict, even a partial verdict, against the defendant."); and, finally, (3) the government's theory that there is no invasion into the province of the jury because when a defendant affirmatively stipulates to the "ultimate" or "elemental" fact, there is no longer any factual dispute over the existence of that element for the jury to resolve, and therefore, an instruction to the jury to find that the stipulation established the fact is not a directed verdict. See United States v. Gaudin, 515 U.S. 506, ----, 115 S.Ct. 2310, 2316, 132 L.Ed.2d 444 (1995) (holding that a jury's function in a criminal case is " 'to determine the existence of an element of the crime--that is, an 'ultimate' or 'elemental' fact--from the existence of one or more 'evidentiary' or 'basic' facts' ") (quoting County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979)); United States v. Benally, 756 F.2d 773, 778 (10th Cir.1985) (holding that an instruction to find an "elemental" fact constitutes a directed verdict when stipulation was only to "evidentiary" fact).

We decline to decide at this time whether the instruction challenged here was error. Rather we choose to decide the case on narrower grounds, see Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), and will assume error for purposes of completing the Rule 52(b) analysis.

B. OCCURRENCE OF PLAIN ERROR

Assuming the existence of error for purposes of our analysis, we must next determine whether the error was plain. United States v. Thomas, 11 F.3d 620, 630 (6th Cir.1993) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993)). The term plain "is synonymous with 'clear' or, equivalently, 'obvious.' " Olano, 507 U.S. at 734, 113 S.Ct. at 1777 (citation omitted).

There is only sparse case law addressing this question, and what little case law exists is divergent and conflicting. United States v. Mason, 85 F.3d 471, 473-74 (10th Cir.1996); United States v. Muse, 83 F.3d 672, 677-81 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996). As the Muse court noted, "[w]e have been unable to find much guidance in the case law; indeed, no appellate case seems to have set forth proper language for a jury instruction in the situation at hand." Muse, 83 F.3d at 680. Against such a legal patchwork, we think that any error in the trial court's instruction is far from "clear" or "obvious." Olano, 507...