United States v. McBride, No. 18-2197

• Citation: 962 F.3d 25
• Decision Date: 11 June 2020
• Docket Number: No. 18-2197
• Parties: UNITED STATES of America, Appellee, v. Reginald MCBRIDE, a/k/a Kweasia McBride, a/k/a Reggie McBride, a/k/a Reginald Washington, a/k/a Benjamin McBride, a/k/a Manney McBride, a/k/a Anthony Walker, a/k/a Ben McBride, a/k/a John Doe, a/k/a Sunny, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

962 F.3d 25

UNITED STATES of America, Appellee,

v.Reginald MCBRIDE, a/k/a Kweasia McBride, a/k/a Reggie McBride, a/k/a Reginald Washington, a/k/a Benjamin McBride, a/k/a Manney McBride, a/k/a Anthony Walker, a/k/a Ben McBride, a/k/a John Doe, a/k/a Sunny, Defendant, Appellant.

No. 18-2197

United States Court of Appeals, First Circuit.

June 11, 2020

Elizabeth A. Latif and Law Offices of Elizabeth Latif, PLLC on brief for appellant.

Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

Before Torruella, Lynch, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

After a three-day trial, a jury convicted Reginald McBride of (1) possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) ; (2) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) ; and (3) carrying and using a firearm during and in relation to, and possessing the firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In the course of determining McBride's guilt on Count Three, the jury was asked one special interrogatory and determined that the government had not proven that the firearm was "discharged."

McBride challenges his conviction on Count Three on two grounds. He argues that the indictment was constructively amended in violation of the Fifth Amendment's Grand Jury Clause because of the admission of evidence, the government's closing argument, and the jury instructions. He further argues that the jury's verdict on Count Three and the special interrogatory answer were irreconcilably inconsistent. We affirm.

I.

McBride only challenges his conviction on Count Three. We recount the relevant facts in the light most favorable to the verdict. United States v. Leoner-Aguirre, 939 F.3d 310, 313 (1st Cir. 2019).¹

A. Facts

On June 26, 2016, Samantha Tupper, a friend of McBride, drove a white Ford Taurus to where McBride had been staying with a friend in Augusta, Maine. McBride testified that Tupper had called him and said she needed to talk to him about something. McBride packed up his belongings and when Tupper arrived, he put his bags into the trunk of the car. The two drove around Augusta and Tupper told McBride that some other individuals had informed her that she owed them money.

McBride further testified that he and Tupper drove to a convenience store and picked up two females, who sat in the backseat. One of the women began to physically attack Tupper while Tupper was driving and demanded that Tupper pay her the money that she owed. Tupper stopped the car at the Walmart in Augusta and continued arguing with the woman. At various points during the dispute, Tupper, McBride, and both female passengers got out of the vehicle in the Walmart parking lot.

Another man approached the group in a silver Volkswagen and got out of the vehicle. McBride testified that the other man pulled out a gun. McBride further testified that he drew the weapon holstered on his hip and fired it at the man. About five shots were exchanged between McBride and the other man.

McBride removed the magazine from his gun, threw both to the ground, and began physically fighting the other man. Two Walmart patrons approached McBride and the other man and broke up the fight. McBride and Tupper got into the white Ford Taurus and drove away. The other man and the woman who had fought with Tupper stayed in the parking lot and waited for the police. One of the individuals who broke up the fight saw a firearm and magazine "laying on the ground next to each other." He kicked them away from each other and awaited the arrival of law enforcement.

An Augusta Police Department officer responded to the shooting at the Walmart. He recovered the firearm that was on the ground of the parking lot. It was a Kel-Tec .9-millimeter pistol. He also found the pistol's magazine "7 to 10 feet away." Additional officers arrived within a few minutes. They recovered bullet casings from the ground of the Walmart parking lot. An officer observed a bullet hole in the door of the silver Volkswagen.

Another Walmart patron observed the altercation and filmed McBride getting into the passenger seat of the white Ford Taurus before Tupper drove it away from Walmart. The patron followed the Ford Taurus, recorded its license plate number, and gave this information to law enforcement.

Law enforcement matched the plate number to an address in Augusta on Mayflower Road. An officer from the Hallowell Police Department drove to the address. The officer found the white Ford Taurus parked in the driveway with Tupper and McBride in the process of getting out of the car. The officer ordered both Tupper and McBride to put their hands up. Tupper obeyed, but McBride failed to follow the officer's instructions, and the officer called for backup. Two more officers arrived, at which point McBride complied, and the officers took McBride into custody.

Officers searched McBride and found a wallet, brass knuckles, money, several empty baggies, and a baggie containing about forty grams of heroin. McBride had an empty gun holster attached to his waist. Officers also observed bullet holes in the passenger side of the Ford Taurus.

On July 6, 2016, officers searched the Ford Taurus at the Augusta Police Department. In the trunk, they found a .22 caliber Cobra handgun, a Jennings .32 caliber pistol, a holster, four digital scales, a gun scope, ammunition, a speed loader, and a playing card with the name "Sunny" written on it.² Under the front passenger seat, officers found a .22 caliber revolver.

B. Procedural History

On November 8, 2017, a federal grand jury returned a second superseding indictment charging McBride with three counts. Count One charged that McBride "knowingly possessed in and affecting interstate commerce a Kel-Tec, CNC Industries Inc., model PF-9, 9 mm pistol, with serial number SDT02" and that he "had previously been convicted of a crime ... punishable by imprisonment for a term of more than one year." Count Two charged that McBride "knowingly and intentionally possessed with intent to distribute ... a mixture or substance containing heroin." Count Three charged that McBride "knowingly carried and used a firearm, namely a Kel-Tec, CNC Industries Inc., model PF-9, 9 mm pistol, with serial number SDT02, during and in relation to a drug trafficking crime ... and possessed the firearm in furtherance of such drug trafficking crime." The indictment further stated that "the drug trafficking offense is the offense as alleged in Count Two of this Indictment." The indictment also charged that "[t]he defendant discharged the Kel-Tec, CNC Industries Inc., model PF-9, 9 mm pistol, with serial number SDT02."

McBride's trial began on March 9, 2018. On March 12, 2018, the government moved to admit the Kel-Tec pistol as well as the three other firearms recovered from the Ford Taurus. All four firearms were admitted without objection by McBride.

On March 13, 2018, the government offered testimony from forensic analysts about the fingerprint and DNA analyses performed on all four firearms. During the examination of a fingerprint analyst, defense counsel objected:

I appreciate that the government has introduced evidence of multiple firearms. It seemed relevant because it was essentially obtained from things that could be attributed to Mr. McBride. They've only charged possession relative to the Kel-Tec 9 millimeter and the charge in Count 3 as relative to that firearm, as well. Connecting through forensic evidence the defendant to a different firearm I think is problematic....

The district court overruled the objection, stating, "I think the fact that he had multiple guns is relevant to Count 3." Defense counsel objected again on the same grounds later in the testimony, and the district court overruled the objection.

Later during the examination of a DNA analyst, defense counsel objected "to testimony ... from this witness regarding analysis of firearms other than those expressly charged in the indictment." The district court overruled the objection. After defense counsel objected again later in the testimony of the DNA analyst, the district court stated:

I realize you're protecting the record on this, but it's very, very clear to me that the other guns are part of the circumstances that I'll instruct the jury that they can consider on Count 3.... [I]t seems to me very clear that the presence of other guns is relevant to the question of in furtherance.

The court granted defense counsel a continuing objection and stated "[y]ou are fully protected under the record on this."

In delivering the jury instructions, the district court stated that "[f]or purposes of Count 3, you may consider all the surrounding circumstances." This could include factors "like whether Mr. McBride's possession of the firearm was legal; the type of weapon; whether the gun was loaded; whether there's any evidence ... that the weapon was stolen; how accessible the firearm was; and the time and circumstances under which the firearm was found." The district court further stated:

In order for you to find Mr. McBride guilty of [Count Three], the government must prove the following elements beyond a reasonable doubt: First, that Mr. McBride committed the crime of possession of heroin with the intent to distribute described in Count 2; and, second, that Mr. McBride knowingly used or carried a firearm during and in relation to the commission of that crime.

(Emphasis added.) At the close of the instructions, the court reminded the jury to "[c]onsider only the crimes charged.... Mr. McBride is not on trial for any act, conduct, or offense not alleged in the second superseding indictment." Defense counsel did not object to the instructions.

The government began closing arguments by stating that on June 26, 2016,

McBride[ ] got in the passenger seat of a Ford Taurus and traveled to the Walmart in Augusta. He was armed with a Kel-Tec 9 millimeter pistol.... In

...