U.S. v. Ford, 88-3603

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: BAILEY BROWN; KENNEDY
• Citation: 872 F.2d 1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Thomas FORD, Defendant-Appellant.
• Docket Number: No. 88-3603,88-3603
• Decision Date: 10 April 1989

Page 1231

872 F.2d 1231 UNITED STATES of America, Plaintiff-Appellee,
v.
Kevin Thomas FORD, Defendant-Appellant. No. 88-3603. United States Court of Appeals,
Sixth Circuit. Argued Feb. 3, 1989.
Decided April 10, 1989.

Page 1232

David Shroyer, James E. Rattan (argued), Asst. U.S. Attys., Robyn Jones, Columbus, Ohio, for plaintiff-appellee.

Gordon Hobson (argued), Columbus, Ohio, for defendant-appellant.

Before KENNEDY and NELSON, Circuit Judges; and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

Ford appeals his jury convictions on charges of using false identification and making a false statement in connection with the purchase of a firearm (Count I), of providing false identification in a transaction that affected interstate commerce (Count II), and of possessing a firearm after having been convicted of a felony and of having three previous violent felony convictions (Count III). Because we hold that the evidence introduced at trial and the district judge's instruction constructively amended the charge contained in Count III of the grand jury's indictment, we reverse Ford's conviction on Count III, but we affirm the other convictions.

Statement of the Case

On November 2, 1986, a man identifying himself as "Andre J. Small" purchased a revolver from the Powder Room, a gun shop in Powell, Ohio. "Small" used an Ohio driver's license in that name for identification and signed a statement denying that he had a felony conviction in a firearms registration form.

On August 9, 1987, while driving near Columbus, Ohio, Ford shot himself in the hand. A friend of Ford, Nathaniel Edwards, who had been driving in tandem with Ford, noticed that Ford had pulled into a parking lot and parked. Edwards followed Ford into the lot and witnessed Ford's hand bleeding. Ford then gave Edwards

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the gun with which he had shot himself, and the two proceeded to a nearby police station where Ford told the police that he had been shot by another motorist. After arriving at the police station, Ford was taken to a hospital while his car remained at the station. It was decided by the investigating officers that the vehicle would be impounded. Pursuant to police procedure the vehicle was subjected to an inventory search before impoundment. During the course of the search an Ohio driver's license bearing Ford's picture but in the name of "Andre J. Small" and a checkbook in the name of "Andre J. Small" were found in a pocket of Ford's jacket which was hanging behind the driver's seat. Edwards took the gun and returned it to Ford's wife several days after this incident.

On September 28, 1987, Ford's wife, Cathy, reported to the Columbus police that Ford had a gun and was threatening to kill her. When the police arrived, they arrested and searched Ford but did not find a gun on his person. A gun was found, however, in the upstairs bathroom. It was apparently the same gun that had been purchased on November 2, 1986 in Powell, Ohio.

Ford, prior to November 2, 1986, had been convicted of six felonies, five of which were violent felonies.

The grand jury indictment charged Ford with, on November 2, 1986, making a false statement denying any prior felony convictions, alleging that Ford had two violent and one nonviolent criminal convictions, and with using false identification in connection with the purchase of a firearm in violation of 18 U.S.C. Secs. 922(a)(6) and 924(a)(1) (Count I); with producing a false Ohio driver's license on November 2, 1986 in a transaction affecting commerce in violation of 18 U.S.C. Sec. 1028(a)(1) and (c)(3) (Count II); and with possessing a firearm "[o]n or about September 28, 1987" after having previously been convicted of a felony ¹ and, to support additional punishment under Sec. 924(e)(1), of having at least three previous violent felony convictions, ² in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(1) and (e)(1) (Count III).

Prior to trial, Ford made a motion in limine to prevent the introduction of evidence of more than one prior felony conviction. His contention was that the three violent crimes required to be proved under Sec. 924(e)(1) were not ingredients of the crime charged and would only be a basis for augmenting the penalty and that, therefore, proof of them was not admissible until after conviction to augment the penalty. Ford further contended that the prosecution should be limited at trial to proving only one of the felonies that was alleged in both Count I and Count III. The motion was denied and, as stated, at trial the government introduced evidence of six felony convictions, five of which were violent. Ford again objected to this evidence at trial and was overruled.

Since Count III of the indictment charged possession "[o]n or about September 28, 1987," the district judge instructed the jury in the general charge that it was sufficient for purposes of a conviction on that count to find that Ford had possessed a gun on a date reasonably near September 28, 1987. During deliberations, the jury asked the judge a question which counsel agreed was intended to ascertain whether they could find Ford guilty on Count III if they believed that he had possessed a gun on August 9, 1987. The judge then further instructed the jury that the critical factor was a finding of possession after Ford had been convicted of a felony, and charged that, in substance, the time frame could include any date from November 1986 (the alleged purchase date) through September 1987 (the alleged possession and domestic violence date).

The jury returned convictions on all three counts and Ford was sentenced to 20 years

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without parole on Count III and to concurrent five-year sentences on Counts I and II. Ford appeals his convictions on all three counts contending (1) as to the possession charge in Count III, that the district judge's instruction with respect to the dates of possession of a firearm improperly diverged from the date alleged in the indictment and therefore constituted reversible error, (2) as to all counts, that the introduction of evidence of six prior felony convictions constituted prejudicial and reversible error, and (3) as to all counts, that the search of Ford's jacket during the legitimate inventory search of his automobile was impermissibly broad in scope and that it was, therefore, error to admit the evidence so obtained.

Amendment of the Indictment

Ford argues that the district judge's supplemental jury instruction improperly amended the charge contained in Count III of the indictment and that this modification warrants reversal of his conviction on that count. In Count III of the indictment the grand jury charged:

On or about September 28, 1987, in the Southern District of Ohio, KEVIN THOMAS FORD, did unlawfully possess affecting commerce a firearm, that is a Smith and Wesson, Model 60, .38 special caliber revolver, having been convicted of a crime punishable by imprisonment for a term exceeding one year and having at least three previous convictions which constitute violent felonies....

Count III then charged five specific convictions of violent crimes.

The district judge's general instructions to the jury included a standard instruction as to the jury's proper consideration of the "on or about" language contained in the indictment:

[I]t is not necessary that the government prove beyond a reasonable doubt that the acts alleged were committed on the exact date named in the indictment. It is sufficient if you find beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

The jury deliberated the remainder of that day and on the morning of the next day informed the judge that it could not reach a unanimous verdict. The judge then gave the jury a modified Allen charge. ³ The jury resumed its deliberations and shortly thereafter advised the judge that it wanted further instruction as to what constituted a date reasonably near the date charged in the indictment. Counsel agreed, as heretofore stated, that the gist of the jury's request was for an instruction as to whether the conviction on Count III could be based on possession on August 9, 1987. The judge then gave the following supplemental jury instruction:

Now, in this case, under the evidence there is a time span, a considerable time span that the evidence encompasses. That time span would begin with the date alleged in Count One of the indictment, which is on November 2nd, 1986, on which date it is charged that Kevin Thomas Ford purchased this firearm. And that time frame then begins on November 2nd, 1986, and extends all the way up to the date specified in Count Three of the indictment; namely, September 28th, 1987, which of course, is the date of the alleged domestic violence, and that would include the dates in between. And, of course, there is one particular date which has been the subject of some evidence in this case; namely, the date of an incident in which Mr. Ford was injured somehow while on the highway, Interstate 270.

In this case, what is significant would be a finding beyond a reasonable doubt that Kevin Thomas Ford possessed a firearm, affecting commerce, after he had been convicted of a felony. And in this case, the time frame could include any date from November 2nd, 1986, the date he allegedly purchased the firearm, up until the date of September 28th, 1987, the date of the alleged domestic violence in his home.

Thirty-five minutes after this instruction was given, the jury returned a verdict of guilty on all three counts.

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The Supreme Court has recognized the damaging effect of modifications to the charges issued by a grand jury. In Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1887), the Court declared:

If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if...