U.S. v. Brown

• Decision Date: 23 October 2007
• Docket Number: No. 06-3053.,06-3053.
• Citation: 504 F.3d 99
• Parties: UNITED STATES of America, Appellee v. Andre R. BROWN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

504 F.3d 99

UNITED STATES of America, Appellee v. Andre R. BROWN, Appellant.

No. 06-3053.

United States Court of Appeals, District of Columbia Circuit.

Argued October 2, 2007.

Decided October 23, 2007.

Appeal from the United States District Court for the District of Columbia (No. 05cr00144-01).

Ketanji Brown Jackson, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Daria J. Zane, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Lisa H. Schertler, and John P. Gidez, Assistant U.S. Attorneys.

Before: SENTELLE and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Andre Brown appeals his conviction for possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1), arguing that the district court erred in allowing the jury to find him guilty of possessing only ammunition when the grand jury had indicted him for possession of both a firearm and the ammunition found inside. For the following reasons, we reject Brown's arguments and affirm his conviction.

I.

On April 1, 2005, Metropolitan Police Officers conducted a "buy-bust" undercover drug investigation. Around 5:35 p.m., an undercover officer who had just completed a buy-bust with a different suspect witnessed Brown, who had just entered the parking lot, toss a plastic bag appearing to contain plant leaves behind a parked car and then get into the car's driver's seat. The undercover officer had already called in the arrest team to detain other suspects, but added instructions to stop Brown and recover the item he had just discarded behind his vehicle.

When arresting officers pulled into the parking lot in marked police cruisers, one cruiser parked immediately in front of Brown and his vehicle. Officer Robert Munn got out of the passenger door of that cruiser and walked directly towards Brown's vehicle. As Munn approached, he saw Brown reach for his waistband area, then reach over to open and close his glove box. In short order, Munn and the other officers removed Brown from the car, recovered a bag of marijuana from behind the vehicle and searched its interior. Upon opening the glove box, the officers found a loaded Hi-Point .45 caliber pistol. Officer Munn's initial affidavit in support of the sworn criminal complaint against Brown described the pistol as a "Hi-Point 9mm" rather than as a .45 caliber semi-automatic pistol.

By the time the case was presented to the grand jury, this discrepancy in the pistol's description was recognized and corrected. The grand jury returned a two count indictment against Brown charging him with possession of marijuana and with unlawfully possessing a firearm, "that is, a Hi-Point .45 caliber semi-automatic pistol, and did unlawfully and knowingly receive and possess ammunition, that is, .45 caliber ammunition" in violation of 18 U.S.C. § 922(g)(1) due to Brown's prior felony conviction.

When confronted at a pre-trial suppression hearing with the discrepancy between his charging document and the wording of the indictment, Officer Munn, rather than simply admitting he made a mistake on his charging document, insisted that he had only meant that the pistol appeared to be a 9mm due to its style, and then implied that the pistol in question may have been capable of shooting rounds of various calibers. Based on this discrepancy over the pistol's caliber, Brown moved to dismiss the indictment's firearm possession count prior to trial. After the court denied that motion, Brown made Munn's discrepancy the centerpiece of his defense at trial.

Prior to trial, the government submitted the standard "Red Book" jury instruction on the § 922(g)(1) count. The wording of this instruction only addressed possession of a firearm-not ammunition. Brown proposed instructions which would have required the government to show that he knowingly possessed both the firearm and the ammunition. The district court decided to use the "Red Book" instruction, despite its silence on the ammunition issue. Before sending the jury in for deliberations, however, the court recognized that the instruction was "a little misleading because [it] doesn't say anything about the ammunition at all, just the firearm, and they can find him guilty of possession of ammunition and not the firearm, so it's either/or. I should tell them that."

After asking for any objections from counsel and hearing none, the court orally instructed the jury that it could find Brown guilty on the § 922(g)(1) count based on finding that he knowingly possessed either the firearm or the ammunition even though the indictment "charges possession of a firearm and ammunition." After giving the new instruction, the court conferred with counsel on the appropriate wording for the written instructions. The government requested a disjunctive instruction, with language that the defendant could be found guilty for possessing "ammunition or firearm or both," and the court proposed adopting this language. Brown's counsel objected to this disjunctive written instruction, arguing that the indictment said "and" and that the evidence the government had presented only supported a conjunctive wording. After consulting the statutory language, which reads "any firearm or ammunition," the court decided that the disjunctive instruction was appropriate.

The next day, while the jury was deliberating, the jury foreperson sent out a note asking for clarification of the jury instruction, and asked whether the jury had to find both possession of the ammunition and the firearm. The court proposed responding with a simple "no," though the government asked that the court use this opportunity to clarify the disjunctive nature of the instruction. Brown's counsel reiterated her position that the requirement should be phrased in the conjunctive "and" because that is what the indictment read, and that giving a disjunctive instruction now constituted a variance from the indictment. The court asked her if she had any authority to support her position that the court's instruction had created a fatal variance between the indictment and the jury instruction, but she had none. The government argued that the "variance" was permissible because the government had put on evidence supporting a finding on the ammunition issue, and that, in any case, the statute's language trumped the indictment's.

Soon thereafter, the jury sent a note stating that it had reached a verdict, but when it returned to the courtroom to render the verdict, the foreperson gave the court an incomplete verdict form and made a confusing statement about being "locked on the firearm." The court instructed the jury to continue with deliberations, and soon afterwards the jury returned a verdict that remained locked on the possession of a firearm charge but was unanimous on the questions of possession of ammunition and drugs. The jury foreperson subsequently announced that the jury found Brown guilty of possessing a firearm or ammunition by a felon, but acquitted him on the drug possession charge.

Brown made a post-trial motion for acquittal or, alternatively, for a new trial, making some of the same arguments now presented to this Court for review. The district court denied Brown's motions and sentenced him to thirty-three months imprisonment followed by two years of supervised release. This appeal timely followed.

II.

Brown advances three arguments in support of his contention that the district court issued an erroneous jury instruction at his trial. We consider each below.

A. Instruction Unsupported by Evidence Presented

Brown's first argument is that the government's evidence did not support the district court's jury instruction, as all evidence presented concerned a loaded weapon and this precluded a finding that Brown possessed ammunition separate from a weapon. While Brown does not argue that a jury verdict may be struck down for being inconsistent, he argues that a trial court must take steps to avoid such an inconsistent verdict. Brown cites Joy v. Bell Helicopter Textron, 999 F.2d 549, 556 (D.C.Cir.1993), for the proposition that a trial judge's instructions to jurors must be "on the dictates of the law as made applicable by the evidence presented in the particular case." As additional support for this argument, Brown cites Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 528 (8th Cir.1980), for the proposition that it is reversible error to submit to the jury an issue as to which there is no evidence; and United States v. Payne, 805 F.2d 1062, 1067 (D.C.Cir.1986), for the related proposition that a court does not err by refusing to give a lesser included offense instruction when the evidence provides no rational basis for convicting defendant of the lesser offense. Brown argues that since the government's evidence all pointed to a loaded gun, the district court erred by failing to inform the jury that it could only find Brown guilty of possessing a firearm and ammunition because the evidence presented by the government did not support a separate finding of guilt on the possession of ammunition alone.

We are not persuaded by this argument. True, it is proper for a trial court to refuse to submit to the jury a count on which the government has failed to present any evidence that would allow a rational juror to find guilt beyond a reasonable doubt, see, e.g., Bartak, 629 F.2d at 528, but this is not such a case. Brown challenges neither the admissibility of the .45 caliber ammunition the government entered into evidence nor the testimony at trial linking that ammunition to him. Since this evidence supported a guilty finding on the charge of possession of ammunition, the district court properly instructed the jury that it could conclude that Brown possessed ammunition in...