United States v. Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 2, 2007 Decided October 23, 2007

No. 06-3053

UNITED STATES OF AMERICA,

APPELLEE

v.

ANDRE R. BROWN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 05cr00144-01)

Ketanji Brown Jackson, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender.

Daria J. Zane, Assistant U.S. Attorney, argued the cause for

appellee. On the brief were Jeffrey A. Taylor, U.S. Attorney,

and Roy W. McLeese, III, Lisa H. Schertler, and John P. Gidez,

Assistant U.S. Attorneys.

Before: SENTELLE and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

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SENTELLE, Circuit Judge: Andre Brown appeals his

conviction for possession of ammunition by a convicted felon in

violation of 18 U.S.C. § 922(g)(1), arguing that the district court

erred in allowing the jury to find him guilty of possessing only

ammunition when the grand jury had indicted him for

possession of both a firearm and the ammunition found inside.

For the following reasons, we reject Brown’s arguments and

affirm his conviction.

I.

On April 1, 2005, Metropolitan Police Officers conducted

a “buy-bust” undercover drug investigation. Around 5:35 p.m.,

an undercover officer who had just completed a buy-bust with

a different suspect witnessed Brown, who had just entered the

parking lot, toss a plastic bag appearing to contain plant leaves

behind a parked car and then get into the car’s driver’s seat. The

undercover officer had already called in the arrest team to detain

other suspects, but added instructions to stop Brown and recover

the item he had just discarded behind his vehicle.

When arresting officers pulled into the parking lot in

marked police cruisers, one cruiser parked immediately in front

of Brown and his vehicle. Officer Robert Munn got out of the

passenger door of that cruiser and walked directly towards

Brown’s vehicle. As Munn approached, he saw Brown reach for

his waistband area, then reach over to open and close his glove

box. In short order, Munn and the other officers removed

Brown from the car, recovered a bag of marijuana from behind

the vehicle and searched its interior. Upon opening the glove

box, the officers found a loaded Hi-Point .45 caliber pistol.

Officer Munn’s initial affidavit in support of the sworn criminal

complaint against Brown described the pistol as a “Hi-Point

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9mm” rather than as a .45 caliber semi-automatic pistol.

By the time the case was presented to the grand jury, this

discrepancy in the pistol’s description was recognized and

corrected. The grand jury returned a two count indictment

against Brown charging him with possession of marijuana and

with unlawfully possessing a firearm, “that is, a Hi-Point .45

caliber semi-automatic pistol, and did unlawfully and knowingly

receive and possess ammunition, that is, .45 caliber

ammunition” in violation of 18 U.S.C. § 922(g)(1) due to

Brown’s prior felony conviction.

When confronted at a pre-trial suppression hearing with the

discrepancy between his charging document and the wording of

the indictment, Officer Munn, rather than simply admitting he

made a mistake on his charging document, insisted that he had

only meant that the pistol appeared to be a 9mm due to its style,

and then implied that the pistol in question may have been

capable of shooting rounds of various calibers. Based on this

discrepancy over the pistol’s caliber, Brown moved to dismiss

the indictment’s firearm possession count prior to trial. After

the court denied that motion, Brown made Munn’s discrepancy

the centerpiece of his defense at trial.

Prior to trial, the government submitted the standard “Red

Book” jury instruction on the § 922(g)(1) count. The wording

of this instruction only addressed possession of a firearm—not

ammunition. Brown proposed instructions which would have

required the government to show that he knowingly possessed

both the firearm and the ammunition. The district court decided

to use the “Red Book” instruction, despite its silence on the

ammunition issue. Before sending the jury in for deliberations,

however, the court recognized that the instruction was “a little

misleading because [it] doesn’t say anything about the

ammunition at all, just the firearm, and they can find him guilty

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of possession of ammunition and not the firearm, so it’s

either/or. I should tell them that.”

After asking for any objections from counsel and hearing

none, the court orally instructed the jury that it could find Brown

guilty on the § 922(g)(1) count based on finding that he

knowingly possessed either the firearm or the ammunition even

though the indictment “charges possession of a firearm and

ammunition.” After giving the new instruction, the court

conferred with counsel on the appropriate wording for the

written instructions. The government requested a disjunctive

instruction, with language that the defendant could be found

guilty for possessing “ammunition or firearm or both,” and the

court proposed adopting this language. Brown’s counsel

objected to this disjunctive written instruction, arguing that the

indictment said “and” and that the evidence the government had

presented only supported a conjunctive wording. After

consulting the statutory language, which reads “any firearm or

ammunition,” the court decided that the disjunctive instruction

was appropriate.

The next day, while the jury was deliberating, the jury

foreperson sent out a note asking for clarification of the jury

instruction, and asked whether the jury had to find both

possession of the ammunition and the firearm. The court

proposed responding with a simple “no,” though the government

asked that the court use this opportunity to clarify the disjunctive

nature of the instruction. Brown’s counsel reiterated her

position that the requirement should be phrased in the

conjunctive “and” because that is what the indictment read, and

that giving a disjunctive instruction now constituted a variance

from the indictment. The court asked her if she had any

authority to support her position that the court’s instruction had

created a fatal variance between the indictment and the jury

instruction, but she had none. The government argued that the

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“variance” was permissible because the government had put on

evidence supporting a finding on the ammunition issue, and that,

in any case, the statute’s language trumped the indictment’s.

Soon thereafter, the jury sent a note stating that it had

reached a verdict, but when it returned to the courtroom to

render the verdict, the foreperson gave the court an incomplete

verdict form and made a confusing statement about being

“locked on the firearm.” The court instructed the jury to

continue with deliberations, and soon afterwards the jury

returned a verdict that remained locked on the possession of a

firearm charge but was unanimous on the questions of

possession of ammunition and drugs. The jury foreperson

subsequently announced that the jury found Brown guilty of

possessing a firearm or ammunition by a felon, but acquitted

him on the drug possession charge.

Brown made a post-trial motion for acquittal or,

alternatively, for a new trial, making some of the same

arguments now presented to this Court for review. The district

court denied Brown’s motions and sentenced him to thirty-three

months imprisonment followed by two years of supervised

release. This appeal timely followed.

II.

Brown advances three arguments in support of his

contention that the district court issued an erroneous jury

instruction at his trial. We consider each below.

A. Instruction Unsupported by Evidence Presented

Brown’s first argument is that the government’s evidence

did not support the district court’s jury instruction, as all

evidence presented concerned a loaded weapon and this

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precluded a finding that Brown possessed ammunition separate

from a weapon. While Brown does not argue that a jury verdict

may be struck down for being inconsistent, he argues that a trial

court must take steps to avoid such an inconsistent verdict.

Brown cites Joy v. Bell Helicopter Textron, 999 F.2d 549, 556

(D.C. Cir. 1993), for the proposition that a trial judge’s

instructions to jurors must be “on the dictates of the law as made

applicable by the evidence presented in the particular case.” As

additional support for this argument, Brown cites Bartak v. Bell-

Galyardt & Wells, Inc., 629 F.2d 523, 528 (8th Cir. 1980), for

the proposition that it is reversible error to submit to the jury an

issue as to which there is no evidence; and United States v.

Payne, 805 F.2d 1062, 1067 (D.C. Cir. 1986), for the related

proposition that a court does not err by refusing to give a lesser

included offense instruction when the evidence provides no

rational basis for convicting defendant of the lesser offense.

Brown argues that since the government’s evidence all pointed

to a loaded gun, the district court erred by failing to inform the

jury that it could only find Brown guilty of possessing a firearm

and ammunition because the evidence presented by the

government did not support a separate finding of guilt on the

possession of ammunition alone.

We are not persuaded by this argument. True, it is proper

for a trial court to refuse to submit to the jury a count on which

the government has failed to present any evidence that would

allow a rational juror to find guilt beyond a reasonable doubt,

see, e.g., Bartak, 629 F.2d at 528, but this is not such a case.

Brown challenges neither the admissibility of the .45 caliber

ammunition the government entered into evidence nor the

testimony at trial linking that ammunition to him. Since this

evidence supported a guilty finding on the charge of possession

of ammunition, the district court properly instructed the jury that

it could conclude that Brown possessed ammunition in violation

of 18 U.S.C. § 922(g)(1).

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As Brown concedes, the fact that a jury comes to a factually

inconsistent verdict is not, by itself, grounds for reversal. See

Dunn v. United States, 284 U.S. 390, 393 (1932); United States

v. Campbell, 684 F.2d 141, 151-52 (D.C. Cir. 1982) (addressing

compromise verdicts). In Dunn, the Supreme Court “held that

a criminal defendant convicted by a jury on one count could not

attack that conviction because it was inconsistent with the jury’s

verdict of acquittal on another count.” United States v. Powell,

469 U.S. 57, 58 (1984). This is so because inconsistent verdicts

may well be nothing more than “a demonstration of the jury’s

leniency.” Id. at 61. This rationale is equally applicable where

a single count alleges two methods of committing a violation as

where the two methods are separated into two separate counts.

In any event, in the present case, the alleged inconsistency is not

completely unexplainable. The caliber of the pistol seized from

Brown’s vehicle was in dispute during the trial, and some jurors

may have retained doubt over whether the pistol entered into

evidence was the same one seized from Brown’s vehicle. All

jurors determined beyond reasonable doubt that the ammunition

admitted at trial was Brown’s. Given that the statute and

indictment only required the jury to find that Brown possessed

the ammunition in order to find him guilty of the crime, it was

permissible for the jury to decide to stop deliberating at that

point and render its verdict. Thus, we see no reason to disturb

the conviction on this ground.

B. Constructive Amendment

Brown’s second argument is that, by instructing the jury

that it could find him guilty of either possessing the weapon “or”

the ammunition, the district court constructively amended the

indictment. Brown cites Stirone v. United States, 361 U.S. 212,

215-16 (1960), for the proposition that “after an indictment has

been returned[,] its charges may not be broadened through

amendment except by the grand jury itself.” Since the

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indictment charged Brown with possession of a firearm “and”

ammunition, he urges that changing the jury instruction to allow

the jury to find him guilty of possessing either the firearm or the

ammunition broadened his potential basis of criminal liability

beyond the bounds of the original indictment.

Brown cites two Eleventh Circuit cases as support for his

argument. In United States v. Narog, 372 F.3d 1243, 1249-50

(11th Cir. 2004), the district court responded to a jury question

about the requirements of finding a defendant guilty by relying

on the text of the criminal code rather than the specific charge

found in the indictment; the resulting conviction was

subsequently reversed by the Eleventh Circuit. That circuit

reasoned that the government had charged a subset of the

statutory crime, and that it must be held to prove what it had

charged. Id. Similarly, in United States v. Weissman, 899 F.2d

1111, 1116 (11th Cir. 1990), the same court concluded that a

district court’s jury instructions “altered an essential element of

the crime charged” in light of the government’s evidence in the

case.

These two cases are inapposite, however, as both merely

stand for the proposition that a defendant may not be found

guilty of a specific crime for which he was not indicted. In

Narog, the government had specifically charged the defendant

with possession and distribution of pseudoephedrine knowing

that it would be used to manufacture methamphetamine. Narog,

372 F.3d at 1246. There, the court responded to a jury question

on the mens rea requirement by stating simply that the

government needed to prove “that the pseudoephedrine would

be used to manufacture some controlled substance,” rather than

instructing that the jury could find guilt only if it found that the

defendant knew the pseudoephedrine would be used to

manufacture methamphetamine as the indictment specified. Id.

at 1247. Similarly, in Weissman, the district court supplemented

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its jury instruction in a way that permitted the jury to find the

defendant guilty of a RICO conspiracy other than the one

specified in the indictment. Weissman, 899 F.2d at 1112. The

Weissman indictment had specifically charged the defendants

with a conspiracy committed while they were associated with an

enterprise defined as coextensive with a certain crime family.

Id. During jury deliberations, the jury asked the court whether

the crime family and the term “enterprise” must be construed as

one and the same. The district court responded that the jury did

not need to find that the defendants were associated with the

particular crime family, only with an “enterprise” as the court

had earlier defined that term. Id. at 1113. The Eleventh Circuit

found that this created the possibility “that appellants were

convicted on grounds not charged in the indictment.” Id. at

1112.

Unlike those two cases in which the district courts issued

jury instructions which could have permitted a guilty finding on

an unindicted charge, Brown was specifically indicted for both

possession of a Hi-Point .45 caliber semi-automatic pistol and

for possession of .45 caliber ammunition. Therefore, the court’s

instruction that they could find Brown guilty for possession of

either injected no possibility of conviction of an offense not

alleged in the indictment.

In any case, it is well established that if a criminal statute

disjunctively lists multiple acts which constitute violations, “the

prosecution may in a single count of an indictment or

information charge several or all of such acts in the conjunctive

and under such charge make proof of any one or more of the

acts, proof of one alone, however, being sufficient to support a

conviction.” District of Columbia v. Hunt, 163 F.2d 833, 837-38

(D.C. Cir. 1947) (citing Crain v. United States, 162 U.S. 625

(1896)). Thus, it was no error for the government to seek a

conjunctively worded indictment and then ultimately secure a

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conviction on proof of one act alone. We find no constructive

amendment of the indictment in this case.

C. Effective Bifurcation of Charge

Brown’s final argument is that, in contravention of circuit

precedent, the district court’s disjunctive jury instruction

effectively treated the firearm and the ammunition it contained

as two separate offenses. In United States v. Clark, 184 F.3d

858, 871-72 (D.C. Cir. 1999), this Court held that “possession

of a loaded weapon constitutes a single offense” under 18 U.S.C.

§ 922(g)(1), and reversed one of two convictions a jury had

returned when it found a defendant guilty of possessing a loaded

firearm in violation of that statute. Brown argues that, in

function, the district court here bifurcated the charge when it

allowed the disjunctive instruction and repeatedly referred to

possession of the firearm and possession of ammunition as

separate “counts” when discussing the charges. Brown asserts

that the court gave the jury the impression that a loaded weapon

constituted more than one offense and thereby violated this

Court’s precedent.

We disagree. In Clark, the fundamental issue was not a

court’s implicit division of possession of ammunition and

possession of a firearm into separate counts, but an actual

indictment and conviction on two separate counts of violating 18

U.S.C. § 922(g)(1) for possession of a single loaded firearm.

Clark’s defendant was indicted for two counts of violating §

922(g)(1): one count for possessing a firearm and a second count

for possessing the ammunition inside. Id. at 862-63. While not

even discussed specifically, to the extent that Clark’s jury

instruction was flawed for permitting such a double conviction,

the flaw resulted from the improper indictment. Clark involved

two separate counts of conviction, but does not speak to the

issue of whether the two grounds within a single count need to

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be charged with a conjunctive “and” or can be charged with a

disjunctive “or.” Here, Brown was indicted for one violation of

§ 922(g)(1), and we reject his argument that the district court’s

discussion of two possibilities for violating that statute as

separate “counts” rises to the same level as the Clark district

court’s permission of separate convictions for a single violation

of § 922(g)(1).

The English language lacks a precise, simple term that

courts may use to refer to each act in a disjunctively phrased

criminal statute, so the district court’s slight lapse in referring to

each of the two elements as “counts” is understandable. But,

more importantly, we fail to see that use of this terminology led

to jury confusion about the nature of the crime with which

Brown was charged—specifically on the question of whether the

two acts constituted separate substantive counts of violating §

922(g)(1). The verdict form the court submitted to the jury

clearly showed the members that they could find Brown guilty

of violating the statute either by finding that he unlawfully

possessed a firearm, unlawfully possessed ammunition, or both.

The jury correctly completed the form by marking that it

unanimously found Brown guilty by reason of his possession of

ammunition while reflecting that it came to no conclusion on the

question of his possession of a firearm option by leaving that

space blank. We see no evidence that they considered the two

questions as belonging to separate offenses.

Finally, while Brown argues that the “court even went so far

as to send the jury back to deliberate further when the verdict

form was blank with respect to the firearm portion of Count I”

in support of his argument that the court implied to the jury that

the two elements were distinct substantive counts, the record

shows that the district court sent the jury back to deliberate

primarily because the foreperson appeared confused about what

the jury had actually decided on this count. In any case, when

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the jury subsequently returned and presented a coherent oral

verdict, the court accepted its verdict form with the firearm

possession section left blank. This demonstrates both that the

district court did not require the jury to return verdicts on both

acts and that the jury correctly understood that arriving at such

a verdict was not required to find the defendant guilty on that

count.

III.

For the reasons set forth above, appellant’s conviction is

Affirmed.