U.S. v. Dennard
| Decision Date | 13 September 1993 |
| Docket Number | No. 93-1257,93-1257 |
| Citation | 7 F.3d 235 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Andre John DENNARD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Appeal from the United States District Court for the Eastern District of Michigan, No. 92-80260; Cook, Judge.
E.D.Mich., 812 F.Supp. 749.
AFFIRMED AND REMANDED.
Before: KENNEDY and RYAN, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.
Defendant Andre John Dennard appeals his jury convictions for possession with intent to distribute cocaine, using a firearm during a drug trafficking offense, and being a felon in possession of a firearm. On appeal, defendant contends that the District Court erred (1) in instructing the jury that the government satisfied its burden of proof by proving that the crime charged in the indictment occurred "on or about" March 23, 1992; (2) in denying defendant's motion for judgment of acquittal; (3) in denying defendant's motion for a new trial; and (4) in imposing concurrent fifteen-year sentences on the three felon-in-possession counts. For the reasons set forth below, we affirm defendant's convictions but remand for resentencing.
On March 23, 1992, based on information that defendant was selling cocaine from the premises while armed with firearms, agents for the Bureau of Alcohol, Tobacco and Firearms ("ATF") obtained and executed a search warrant at the residence at 5927 Hedge in Detroit, Michigan. While conducting spot surveillance of the residence, prior to obtaining the warrant, ATF agents had observed defendant enter and leave the premises on several occasions.
Upon entering the house to execute the search warrant, Agent Krappman observed an individual resembling defendant running from the living room to the rear of the house. While searching the upstairs of the residence for the individual who fled, agents found an open window leading to the outside and saw a single deep set of footprints in the snow right outside the window, and a lighter set of footprints leading away from the house towards the backyard, suggesting that someone had jumped out the window.
Agent John Griffith, who was stationed outside the home during the execution of the search warrant, unsuccessfully chased the individual he saw running from the house. During the chase, however, this individual looked back (over his shoulder) several times to check the proximity of the pursuing agent. After arriving back at the residence, Agent Griffith was shown a photograph of defendant. Agent Griffith was unable to identify the defendant as the individual he chased.
During the search of the premises, agents found, in the bedroom, male clothing, a loaded .22 caliber assault rifle and a loaded 12 gauge pump action firearm underneath the bed, and the words "Andre loves Laura" written on the wall next to the bed. In the kitchen, agents discovered a silver metal platter containing cash and crack cocaine. Defendant's fingerprint was on the platter. Also in the kitchen was a loaded .38 caliber Smith & Wesson revolver and a set of keys. The keys belonged to defendant. The agents also recovered two boxes of ammunition, a shoe box for Fila shoes, and several documents addressed to defendant at the 5927 Hedge address.
On March 26, 1992, three days after the search, defendant was arrested near 5927 Hedge street as part of "Operation Gunsmoke," a separate law enforcement program used to apprehend persons with outstanding warrants. Defendant was wearing Fila shoes and clothing similar to that worn by the individual who fled from 5927 Hedge during the ATF agents' execution of the search warrant. Back at ATF headquarters, Agent Griffith was informed that Dennard had been arrested. Agent Griffith asked if Dennard was the person who had fled from 5927 Hedge and the agents said, "yes." Later that day when Agent Griffith stopped by the processing room to see a fellow officer from his investigation group, Agent Griffith identified Dennard, who was being processed, as the individual who had fled from the residence. Again at trial, Agent Griffith identified defendant as the individual he unsuccessfully chased on the day of the search warrant.
On June 18, 1992, defendant was charged with one count of possession with intent to distribute cocaine base, in violation of 18 U.S.C. § 841(a)(1); one count of using a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The jury convicted defendant on all five counts. Thereafter, the District Court denied defendant's motion for judgment of acquittal or new trial and his motion to vacate counts three and four on grounds of multiplicity. On February 11, 1993, the District Court sentenced defendant to 115 months on count one with concurrent 115-month sentences on counts three, four and five, and a 60-month consecutive sentence on count two. This timely appeal followed.
Defendant contends that the District Court erred in its instruction regarding the jury's proper consideration of the "on or about" language contained in the indictment. In count one of the indictment, the grand jury charged that "[o]n or about March 23, 1992, at 5927 Hedge, Detroit ... the defendant ... did knowingly and intentionally possess with intent to distribute cocaine base...." Count two charged that "[o]n or about March 23, 1992, at 5927 Hedge, Detroit ... the defendant ... used and carried a firearm, during and in relation to a drug trafficking crime." Counts three through five charged that "[o]n or about March 23, 1992," defendant, having been convicted of a crime punishable by imprisonment for a term exceeding one year, possessed three different types of firearms.
Regarding the "on or about" language contained in the indictment, the District Court instructed the jury as follows:
Now, I want to say a word about the dates that have been mentioned in the amended indictment.
The amended indictment charges that the crimes occurred "on or about" a certain date. The government does not have to prove that the crimes happened on that exact date. But the government must prove that the crimes occurred reasonably close to that date.
Joint App. at 211. See United States v. Ford, 872 F.2d 1231, 1237 (6th Cir.1989) (), cert. denied, 495 U.S. 918 (1990); Pattern Criminal Jury Instruction 2.04, Sixth Circuit 1991 Edition. Defendant maintains that this instruction was error because the proof at trial required the court to instruct the jury that the government had the burden of proving the crimes occurred on the exact March 23, 1992 date. Specifically, defendant contends that the government failed to present any evidence that the guns or drugs were present in the house on any day other than March 23, 1992. Defendant's defense is that he was not the individual present in the house on March 23, 1992 when the officers executed the search warrant. He argues that the District Court's instruction permitted the jury to convict him even if they agreed he was not present on that date.
In United States v. Neuroth, 809 F.2d 339, 341-42 (6th Cir.1987), this Court stated that:
In determining whether an "on or about" instruction is proper in a particular case, the district court should look at how specifically the government alleges, in its indictment, the date on which the offense occurred, and compare that to the proof at trial as to what date the offense occurred. If the indictment or the proof points exclusively to a particular date, it would be preferable for the trial judge to avoid the "on or about" language.
This Court further held, however, that if all the evidence points exclusively to a particular day, the "on or about" instruction can be harmless error:
We believe the concern that an "on or about" instruction may encourage a jury to speculate wildly as to the commission of a crime on a date not covered by the proof is misplaced. A jury would have no reason to speculate on a date if there was no proof directed thereto. The risk that a jury may make a finding of fact unsupported by the evidence is inherent in every case and cannot be obviated completely by any instruction.
Here, in addition to the evidence relating the events of March 23, 1992, the government also presented sufficient evidence establishing defendant's constructive possession of the guns and drugs found at the Hedge Street residence. "Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others." United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866 (1973). The government presented evidence that defendant listed the Hedge Street address as his residence (1) when reporting to pre-trial services; (2) when receiving pre-trial services visitors; and (3) under oath in a court proceeding. ATF agents also found defendant's keys and several documents addressed to the defendant at the Hedge Street address. The agents also found a .38 caliber Smith & Wesson revolver and cocaine in the kitchen of the residence. Defendant's fingerprint was on the metal platter (found in the kitchen) which contained cash and cocaine. Additionally, the agents found two other firearms in a bedroom of the house in which "Andre loves Laura" was written on the wall. This evidence,...
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