United States v. Stuckey

• Citation: 220 F.3d 976
• Decision Date: 09 May 2000
• Docket Number: No. 00-1300,00-1300
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. JIMMY LEE STUCKEY, JR., APPELLANT. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 976

220 F.3d 976 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. JIMMY LEE STUCKEY, JR., APPELLANT.

No. 00-1300

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 9, 2000

Decided: August 9, 2000

Appeal from the United States District Court for the Eastern District of Arkansas

[Copyrighted Material Omitted]

Before Bowman, Loken, and Bye, Circuit Judges.

Bye, Circuit Judge.

Jimmy Lee Stuckey, Jr., appeals both his conviction for being a felon in possession of a firearm, and the sentence he received. Stuckey challenges the conviction by claiming the district court erred during jury deliberations when it gave a supplemental instruction that stated a "person who has been convicted of a felony may not knowingly possess a firearm at any time," even though the indictment had charged possession "on or about" a date certain. Stuckey challenges the sentence by claiming that four prior drug convictions stemming from a military court martial should not have been used to enhance his sentence as an armed career criminal. We affirm the conviction, but reverse and remand for resentencing.

BACKGROUND

Stuckey was charged in a two-count indictment, the first count of which charged him with being a felon in possession of a firearm "on or about December 25, 1998." The second count charged Stuckey with making a false statement to a gun dealer at the time he purchased that firearm. He pleaded guilty to the false statement charge, but went to trial on the possession charge.

At trial, the jury learned that Stuckey, a resident of Memphis, Tennessee, was delivering presents to his relatives in Arkansas on Christmas Day. He was driving over ninety miles per hour down Interstate 40 when stopped by Arkansas state trooper Sam Koons. Stuckey was driving a car owned by Sheila Gray, his girlfriend.

Before Stuckey pulled over, Trooper Koons noticed him moving around in the car, leaning over as if trying to hide something. When Koons approached the vehicle to ask for license, registration, and proof of insurance, Stuckey reached into a duffle bag on the passenger's seat to get his wallet. In the process, Trooper Koons observed a gun clip in the duffle bag. Koons subsequently searched the vehicle and discovered a handgun under the driver's seat. The gun clip from the duffle bag fit the handgun found under the driver's seat. The other items in the duffle bag were men's clothes.

Gray, the girlfriend, testified that the car, the gun, the duffle bag, and all the contents of the duffle bag, belonged to her. Koons testified that, on the night of the arrest, Gray came to the police station and was asked if she owned any guns. She told Koons that she owned a long gun (gesturing to indicate the length of her gun), but that she did not own a short gun. Gray denied this conversation at trial.

Although Stuckey pleaded guilty to the false statement charge arising out of the purchase of the firearm, the district court allowed evidence related to Stuckey's purchase to prove his subsequent possession. Thus, the jury learned that the handgun was traced to a sale made in February 1998 by Ray Abel, a federal firearms license holder. Stuckey was the purchaser.

During jury deliberations, the jury sent a note to the court asking: "On Element Number 2, knowingly possessed a firearm, does this mean knowingly at any time or at the time of his arrest?"¹ The district court then gave the jury a supplemental instruction indicating: "A person who has been convicted of a felony may not knowingly possess a firearm at any time." Defense counsel objected to the instruction "I would object to the response that knowingly possessed a firearm pertained to any time because the evidence as put on today, and in the indictment itself, it's on the date of arrest, December 25, 1998 . . . [and] it should pertain to that date." The jury found Stuckey guilty.

At the time of sentencing, the court found that Stuckey was subject to an enhanced sentence under 18 U.S.C. 924(e) and U.S.S.G. 4B1.4 as an armed career criminal, based on four predicate "serious drug offenses." All four prior drug offenses stemmed from the same general court martial in a military court on April 10, 1989, under which Stuckey was found to have:

(a) distributed 4.52 grams of marijuana on August 26, 1988;

(b) distributed 66.24 grams of marijuana on September 16, 1988;

(c) possessed an additional 3.25 grams of marijuana with intent to distribute on September 16, 1988; and

(d) distributed 2.086 grams of cocaine on September 14, 1988. Each offense carried a maximum sentence of 15 years under military law.

Application of the armed career criminal provisions substantially increased Stuckey's sentencing range under the guidelines. Without the enhancement, the guideline range would have been 51 to 63 months. With the enhancement, the guideline range became 188 to 235 months. Stuckey was sentenced to 188 months in prison on the possession charge, to be served concurrently with a sentence of 120 months on the false statement charge.²

DISCUSSION

I. The Conviction

The first issue we must decide is whether the supplemental instruction given by the district court requires us to reverse the conviction and remand for retrial. Normally, we review instructions given to the jury under an abuse of discretion standard. See, e.g., United States v. Smith, 104 F.3d 145, 148 (8th Cir. 1997). But where the issue is whether an instruction amounts to a "variance," the issue we ultimately decide to address, ³ a different standard of review applies. Whether a variance exists, and, if so, whether that variance prejudiced Stuckey, are questions of law that we review de novo. See, e.g., United States v. Portela, 167 F.3d 687, 700 (1st Cir. 1999); United States v. Williamson, 53 F.3d 1500, 1512 (10th Cir. 1995). A variance that does not result in actual prejudice to the defendant is harmless error, and does not require reversal of the conviction. See United States v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986).

The supplemental instruction given in this case was not ideal. Although the instruction was an accurate statement of the law, its technical accuracy can not be viewed in a vacuum. Instead, the propriety of giving the instruction must be viewed in relation to the specific context in which the request for supplemental instruction arose, and in relation to the charging language of the indictment.

The jury's request for additional instruction was, presumably, triggered by the fact that the government introduced evidence of possession relating to periods of time other than the date of arrest alleged in the indictment. Most notably, there was evidence that Stuckey also possessed the firearm at the time of its purchase. ⁴

Under these circumstances, the district court should have used an instruction similar to the one used in United States v. Brody, 486 F.2d 291 (8th Cir. 1973). Brody also involved a firearm possession charge where, during deliberations, the jury asked a question about the timing of the defendant's possession: "Does Count One of the Indictment mean at the time of the arrest or possession of the gun at any previous time covered by the evidence at trial?" Brody, 486 F.2d at 292. The court responded:

Count One of the indictment in this case charges that the offense charged therein was committed "on or about the 7th day of July, 1972." The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

Id.

We approved the instruction, holding that the "on or about" charge in the indictment could encompass possession at times other than the day of actual arrest. See id. In the instant case, the district court neglected to give a Brody instruction. If the court had given an instruction like the one used in Brody, then the jury could have determined whether the evidence in this trial was sufficient to show that possession occurred at a time "reasonably near" the date alleged in the indictment. The jury should have had an opportunity to so determine.

Deciding that a different instruction should have been given does not conclude our inquiry, however. We must determine whether the supplemental instruction that was in fact given requires reversal. In United States v. Ford, 872 F.2d 1231 (6th Cir. 1989), the Sixth Circuit addressed that question as applied to a supplemental instruction very similar to the one given here. Ford also involved a firearm possession charge where the evidence demonstrated possession at times other than the date of arrest alleged in the indictment. The first period of possession pertained to the purchase of the gun on November 2, 1986. A second period of possession was on August 8, 1987, when Ford was alleged to have shot himself in the hand with the firearm. A third period of possession was at the time of Ford's arrest during a domestic altercation on September 28, 1987. This third date was the "on or about" date charged in the indictment. See Ford, 872 F.2d at 1232-34.

In its initial instructions, the Ford trial court gave an instruction similar to that used in Brody: proof of possession at a time "reasonably near" the date alleged in the indictment was sufficed to convict. See id. at 1234. When the jury asked for further instruction as to what constituted a date "reasonably near" the date charged in the indictment, the court gave a supplemental instruction which indicated that a person may not possess a firearm at any time after being convicted of a felony. The court further instructed that proof of Ford's possession could encompass any time between the date of purchase and the date of arrest. See id.

The Sixth Circuit considered whether the supplemental instruction was (1) a response to a variance in the evidence, not amounting to reversible error unless the defendant showed prejudice; or (...