U.S. v. Ortega

• Decision Date: 24 October 1988
• Docket Number: No. 87-6265,87-6265
• Citation: 859 F.2d 327
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard Bobby ORTEGA, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 327

859 F.2d 327

UNITED STATES of America, Plaintiff-Appellee, v. Leonard Bobby ORTEGA, Defendant-Appellant.

No. 87-6265

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 24, 1988.

Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Houston, Tex., for defendant-appellant.

Paula C. Offenhauser, James R. Gough, Jr., Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, KING and SMITH, Circuit Judges.

KING, Circuit Judge:

Defendant Leonard Bobby Ortega ("Ortega") appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C.A.App. Sec. 1202(a)(1). Ortega seeks a new trial and vacation of the sentence imposed by the district court.

I.

On September 24, 1986, law enforcement officers who had been looking for a suspect in a red car responded to a report by Investigator James Page of the Hidalgo County Sheriff's Office that Page had observed a red car at a trailer near the sheriff's office in Edinburg, Texas. The officers converged at the scene. As the officers were about to approach the trailer to inquire about the red car, they saw the suspect car turn onto the dirt road that ran by the trailer and drive past them. The officers followed the car until it stopped and then saw Ortega get out of the passenger side. The officers pulled up behind the car, got out, and approached Ortega. Investigator Rogers of the McAllen Police Department testified that he saw Ortega pull a gun from his waistline and crouch down. Rogers stated that he called out to the other officers, "he has got a gun," and then saw Ortega throw the gun under the car. Ortega was arrested, and the officers recovered a Llama .380 caliber semiautomatic revolver from underneath the car.

Ortega was charged in a one-count indictment with violating 18 U.S.C.A.App. Sec. 1202(a)(1) by "knowingly and unlawfully possessing, in commerce, and affecting commerce, a firearm," after having been convicted of three felonies. ¹ The case was tried on November 3, 1987, in the District Court for the Southern District of Texas, and Ortega was convicted. On December 9, 1987, Ortega was sentenced to seven years imprisonment. Ortega filed a notice of appeal the same day.

On January 4, 1988, while the appeal was pending, the Government filed a motion to resentence Ortega because Sec. 1202(a)(1) provides that a defendant who has three previous convictions "shall be ... imprisoned not less than fifteen years." On March 2, 1988 Ortega was resentenced to the statutorily provided minimum of fifteen years. Ortega filed a second notice of appeal on March 9, 1988.

Ortega raises three issues on appeal. First, Ortega asserts that the district court erred in instructing the jury on the theory of constructive possession of the firearm when no evidence was presented at trial to support that theory. Second, Ortega argues that the district court failed to instruct the jury on all elements of the offense. Third, Ortega maintains that the district court did not have jurisdiction, after the notice of appeal was filed, to correct his sentence.

II.

A. Did the Jury Instruction on Constructive Possession Constitute Plain Error?

Ortega contends first that the district court erred in instructing the jury on the theory of constructive possession. ² A judge may not instruct the jury on a charge that is not supported by evidence. United States v. Blevins, 555 F.2d 1236, 1240 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978); United States v. James, 819 F.2d 674, 675 (6th Cir.1987); United States v. McLister, 608 F.2d 785, 791 (9th Cir.1979). The Government concedes that no evidence was presented to support the theory that Ortega was in constructive possession of the gun. The Government's case was based solely on the theory that Ortega was in actual possession of the weapon. We therefore agree that the district court erred in instructing the jury on the constructive possession theory.

However, since Ortega did not object to the instruction at trial, the faulty instruction will not be grounds for reversal unless it rises to the level of plain error. Fed.R.Crim.P. 52(b); United States v. Graves, 669 F.2d 964, 971 (5th Cir.1982). The plain-error doctrine of Rule 52(b) permits us "to correct only particularly egregious errors ... that seriously affect the fairness, integrity, or public reputation of judicial proceedings" and result in a miscarriage of justice. United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1984) (citations omitted); accord United States v. Hernandez-Palacios, 838 F.2d 1346, 1350-51 (5th Cir.1988); United States v. Welch, 810 F.2d 485, 487 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987); Graves, 669 F.2d at 971.

In determining whether a faulty jury instruction rises to the level of plain error, we do not examine the instruction in a vacuum. Rather,

We review claimed deficiencies in a jury charge by looking to the entire charge as well as the arguments made to the jury. Our inquiry is whether in the context of the true trial scene the jury was given incorrect instructions. This is a common sense approach that recognizes that the jury charge does not stand alone for separate examination; that the charge is part of a larger picture of what the jury was told.

United States v. Chagra, 807 F.2d 398, 402 (5th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 106, 98 L.Ed.2d 66 (1987). Looking at the instruction in the context of the trial as a whole, we conclude that the erroneous instruction did not constitute plain error.

Ortega relies on United States v. James, a Sixth Circuit case which also involved an erroneous jury instruction on constructive possession of a firearm. In James, the Sixth Circuit concluded that the instruction was not harmless error. In that case, the jury had been presented with conflicting testimony regarding the defendant's actual possession of the gun. While the police officers testified that they had seen the defendant holding the gun, the defendant took the stand and "flatly contradicted the officers' testimony." 819 F.2d at 676. The Sixth Circuit noted that the jury appeared to have difficulty resolving the conflicting testimony--the jury interrupted its deliberations to ask the court whether it was necessary to find that the defendant had actually been holding the gun. The court then instructed the jury on the theories of actual and constructive possession. A short time later, the jury returned a guilty verdict. The Sixth Circuit concluded that under the circumstances, it was likely that the jury relied on the erroneous constructive possession instruction in finding that the defendant had been in possession of the gun. Id.

Ortega argues that the jury in his case was similarly confronted with conflicting evidence, and that the erroneous instruction permitted the jury to convict him without deciding conclusively whether he was in actual possession of the gun.

We believe that James is distinguishable. No evidence was presented to contradict Rogers' testimony that he saw Ortega holding the gun. While defense counsel tried to establish doubt that the object Rogers saw was a gun, Rogers asserted persistently that he had seen Ortega draw a gun. Rogers' testimony was corroborated by Officer Guerrero who testified that he heard Rogers yell "something to the effect, 'watch it, he has got a gun.' "

We agree with the Government that this case is more similar to United States v. McCoy in which the Seventh Circuit found an erroneous constructive possession instruction harmless beyond a reasonable doubt. 767 F.2d 395, 398 (7th Cir.1985). In McCoy, an officer testified that he had found the gun in the defendant's waistband. While no other officers actually saw the gun, the court found that the arresting officer's testimony was corroborated by that of other officers who knew that a gun had been found during the arrest. Id. In McCoy, as here, the defense presented no contradictory evidence. Id. at 397.

This case is also similar to McCoy in that there is no evidence that the jury was confused by the erroneous instruction. As in McCoy, "the Government's position throughout the trial ... was that [Ortega] was in actual possession of the firearm." Id. at 398. In his opening argument, the prosecutor told the jury that it would hear testimony that "one of the officers saw [Ortega] pull a weapon from his belt." Similarly, in his closing argument, the prosecutor explained the different theories of possession but stated "in this case I believe what we have is actual, sole, possession." The prosecutor then reviewed Rogers' testimony that he had actually seen the defendant draw a weapon.

Given the Government's consistent adherence to a theory of actual possession, and the uncontroverted evidence supporting that theory, we cannot conclude that the constructive possession instruction constituted plain error. Considering the erroneous instruction in the context of the trial as a whole, we conclude instead that the "jury undoubtedly would have convicted the defendant of actual possession." McCoy, 767 F.2d at 397.

B. Did the District Court Fail to Instruct the Jury on the Essential Elements of the Crime?

Defendant next argues that the trial court erred in failing to instruct the jury that it had to find beyond a reasonable doubt that the defendant had three prior convictions for robbery or burglary.

This court held in United States v. Davis, 801 F.2d 754 (5th Cir.1986), that Sec. 1202(a)(1) created a new federal offense and was not merely a sentence-enhancement provision. ³ Under Davis then, Sec. 1202(a)(1) was construed to establish an offense consisting of two elements. The Government had to prove (1) that the defendant received, possessed or transported a firearm in or affecting interstate commerce and (2) that the...