U.S. v. Cornish

• Decision Date: 31 January 1997
• Docket Number: Nos. 95-2086,No. 95-2101,No. 95-2086,95-2101,95-2086,s. 95-2086
• Citation: 103 F.3d 302
• Parties: UNITED STATES of America, Appellant at, v. Anthony CORNISH, a/k/a Jerjuan Mitchall, Appellant at
• Court: U.S. Court of Appeals — Third Circuit

Page 302

103 F.3d 302

UNITED STATES of America, Appellant at No. 95-2086, v. Anthony CORNISH, a/k/a Jerjuan Mitchall, Appellant at No. 95-2101.

Nos. 95-2086, 95-2101.

United States Court of Appeals Third Circuit.

Argued June 12, 1996.

Decided Jan. 3, 1997.

Sur Petition for Rehearing Jan. 31, 1997.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Clement J. McGovern, III (argued), Special Assistant United States Attorney, Philadelphia, PA, for Appellant/Cross-Appellee.

Maureen Kearney Rowley, Chief Federal Defender, Elaine DeMasse, Senior Appellate Counsel, Robert Epstein (argued), Assistant Federal Defender, Philadelphia, PA, for Appellee/Cross-Appellant.

BEFORE: SCIRICA and ROTH, Circuit Judges, and RESTANI, Judge, Court of International Trade. ^*

OPINION OF THE COURT

RESTANI, Judge.

This action is before the court on appeal by the United States and cross-appeal by defendant Anthony Cornish a/k/a Jerjuan Mitchall ("Cornish"). The government contests the district court's determination that Cornish's prior third degree robbery conviction is not a "violent felony" for sentence enhancement purposes, while Cornish challenges the district court's jury instructions with regard to the stipulated fact of Cornish's prior felony conviction. We find no error in the district court's jury instructions, but find that the district court did err in failing to apply the enhanced penalties provided by 18 U.S.C. § 924(e) and USSG § 4B1.4 and remand for resentencing.

BACKGROUND

On April 16, 1994, two police officers were on routine patrol in a marked police vehicle when they observed a car being operated in a reckless manner. (Supp.App.50a-52a) The officers attempted to stop the vehicle, but the vehicle reversed its direction and fled. They pursued the vehicle, using their lights and sirens in an attempt to stop the vehicle. (Supp.App.53a) While fleeing the police, the driver of the vehicle, later identified as Cornish, threw a gun out of the driver's side window, jumped out of the vehicle, and fled on foot. (Supp.App.54a) The vehicle continued forward a short distance and came to rest after hitting a fence. (Supp.App.54a) One officer recovered the weapon, a .38 caliber Colt handgun, while two others apprehended Cornish several blocks away as he attempted to climb over a fence. (Supp.App.54a-55a, 187a)

On September 21, 1994, Cornish was indicted by a federal grand jury on a single count of possession of a firearm by a convicted felon pursuant to 18 U.S.C. § 922(g) (1994). ¹ Following a jury trial, Cornish was found guilty on February 15, 1995. At the sentencing hearing, the district court held that Cornish's prior conviction for third degree robbery is not a "violent felony" pursuant to 18 U.S.C. § 924(e) (1994) ² and U.S. Sentencing Guidelines Manual ("USSG") § 4B1.4 (1995). On November 16, 1995, Cornish was sentenced to 108 months incarceration, five years supervised release, and a $50 special assessment.

STANDARD OF REVIEW

As Cornish did not object to the district court's jury instructions below, our review is limited to plain error under Fed.R.Crim.P. 52(b). See United States v. Retos, 25 F.3d 1220, 1228-29 (3d Cir.1994). We have plenary review over the district court's interpretation and application of the sentencing guidelines to the facts found. See United States v. Collado, 975 F.2d 985, 990 (3d Cir.1992).

DISCUSSION

I.

Cornish claims that the district court violated his constitutional rights protected by the Fifth and Sixth Amendments to United States Constitution when it instructed the jury to "accept" the stipulated fact of his prior felony conviction. By so instructing the jury, Cornish argues that the court improperly removed that element of the crime from the jury's consideration.

The Fifth Amendment guarantees that no one will be deprived of liberty "without due process of law," and the Sixth Amendment ensures that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. V & VI. The Supreme Court has held that, "these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, ----, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444 (1995). A necessary corollary to this rule is that, "a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, regardless of how overwhelmingly the evidence may point in that direction." United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977) (citations omitted).

Prior to trial, the parties entered into two stipulations. The first stipulation provided that, if called to testify, an agent from the Bureau of Alcohol, Tobacco & Firearms would state that the firearm in question was shipped or transported in interstate commerce. (Supp.App.187a-88a) The second stipulation provided that Cornish was previously convicted of a crime punishable by imprisonment for a term exceeding one year. (Supp.App.188a) These stipulations were formally introduced into evidence at the close of the government's case. (Supp.App.189a)

Prior to jury deliberations, the district court instructed the jury as follows:

The Government is required to prove beyond a reasonable doubt every essential element ... of a crime charged in order to justify a verdict of guilty.... The three essential elements or necessary parts of this criminal charge or offense are as follows: First, at the time of the offense, defendant had previously been convicted of a crime punishable by imprisonment of more than a year. And here it's agreed that on April 16th, 1994, defendant had been previously convicted of such a crime....

The second element is that the defendant knowingly possessed a firearm or gun, and the third is that interstate or foreign commerce was affected to some degree.... (Supp.App.304-05a)

The district court also instructed the jury as to various types of evidence: "Evidence is the testimony of the witnesses, the exhibits received into evidence, and also as you know certain facts were agreed to by stipulation and are therefore to be accepted by you without any evidence." (Supp.App.308a) After a suggestion by defense counsel, the court concluded its charge with:

Of course, members of the jury, I gave you a choice of accepting either the Government's or the defendant's evidence, but I also instructed you that you can reject anybody's evidence. So you really have in that sense a third choice. You can accept or reject anyone's testimony, any of the evidence. (Supp.App.312a)

Cornish contends that the district court committed reversible error when it effectively directed a verdict for the government on the prior felony conviction element of the § 922(g)(1) offense. Cornish relies on the reasoning in the Sixth Circuit's opinion in United States v. Mentz, 840 F.2d 315, 318 (6th Cir.1988), in which the defendant was convicted of two counts of bank robbery. A security officer from each bank testified that the banks were federally insured. Id. The Sixth Circuit held that the district court's jury instruction that both banks were federally insured improperly directed a verdict in favor of the government on an essential element of the crime because the judge's conclusive statement left no room for the jury to believe otherwise. Id. at 320 & n. 8. Cornish argues that in the present case, the district court similarly erred when it instructed the jury that it must "accept" the stipulated fact of Cornish's prior felony conviction.

Cornish claims that because a jury has the power to reject a stipulation, the appropriate jury instruction regarding stipulations is to the effect that the jury may, but is not required to, accept the stipulation as evidence and consider that fact as proved. Cornish cites the Devitt and Blackmar model charge which provides that:

When the attorneys on both sides stipulate or agree as to the existence of a fact, you may accept the stipulation as evidence and regard that fact as proved. You are not required to do so, however, since you are the sole judge of the facts.

Hon. Edward J. Devitt, Hon. Charles B. Blackmar, Michael A. Wolff, and Kevin F. O'Malley, Federal Jury Practice and Instructions, Civil and Criminal, § 12.03, at 333 (1992). Cornish argues that the district court's failure to similarly instruct the jury constituted a structural defect in his trial, requiring reversal, irrespective of the evidence or whether a contemporaneous objection was made.

The government counters that the district court's jury instruction did not amount to a directed verdict in favor of the government on an essential element of the crime as the district court never instructed the jury to not consider the prior felony conviction element. The government contends that the court simply informed the jury of the three elements that required proof beyond a reasonable doubt and accurately stated that the parties had agreed to the existence of a prior felony conviction. The government distinguishes the Sixth Circuit's opinion in Mentz from the present case, in that Mentz did not involve a stipulation by the parties to an element of the crime, but the district court's assessment of the sufficiency of the evidence presented on an element of the crime.

We note that Courts of Appeal for the Fourth and Tenth Circuit have recently addressed this issue in United States v. Muse, 83 F.3d 672 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996), and United States v. Mason, 85 F.3d 471 (10th Cir.1996). ³ In Muse, the defendant was also prosecuted under 18 U.S.C. § 922(g)(1). 83 F.3d at 673-74. Muse argued that the district court erroneously instructed the jury on the effect of certain stipulations,...