United States v. Jefferson, Correy

In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-3506

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CORREY JEFFERSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-CR-21—Charles N. Clevert, Judge.

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ARGUED APRIL 3, 2003—DECIDED JULY 2, 2003

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Before CUDAHY, MANION and KANNE, Circuit Judges.

CUDAHY, Circuit Judge Correy Jefferson bought two

semi-automatic handguns, one of which he later gave to

his brother, who is a convicted felon, allegedly for safe-

keeping while Jefferson was out of town. For this transfer,

Jefferson was convicted by a jury of knowingly delivering

a firearm to a felon in violation of 18 U.S.C. § 922(d)

and sentenced to 21 months in prison. He appeals, claiming

that the jury instructions misconstrued the language of

§ 922(d), which he argues does not encompass his ac-

tions. We affirm his conviction.

2 No. 02-3506

I.

In May 2001, Correy Jefferson legally purchased two

Ruger semi-automatic handguns from Buttrum’s Sport-

ing Goods in Glendale, Wisconsin, a Milwaukee suburb.

One of these two guns later ended up in the possession of

Correy’s brother Melvin, who is a convicted felon.1 Using

the handgun’s serial number, the police traced the gun

back to Correy Jefferson, and Correy was arrested on

December 2, 2001. Everything we know about what hap-

pened with the gun comes from Correy’s statement to

the police. According to the statement, Correy and Melvin

had gone to Buttrum’s together to buy the two guns, both

of which were for Correy. Correy knew that his brother,

as a felon, could not legally purchase a firearm. About

a week after the purchase, Correy gave one of the guns

to Melvin so that Melvin could keep it in Melvin’s safe

while Correy was out of town for about a month. The gun

remained with Melvin after Correy returned to Mil-

waukee and then for the duration of another out-of-

town trip. Correy stated that the last time he saw the

gun was when Melvin placed it in the safe, and Correy

admitted that he did not know the combination to Mel-

vin’s safe. Correy was indicted on one count of delivery of

a firearm to a felon, in violation of 18 U.S.C. § 922(d).

Title 18 U.S.C. § 922(d) makes it “unlawful for any per-

son to sell or otherwise dispose of any firearm or ammuni-

tion to any person knowing . . . that such person” is a felon.

Before trial, the government proposed a jury instruction

defining “dispose of”: “To dispose of an object is to trans-

fer it to the control of another.” The government argued

1

As a result of his present receipt of the gun, Melvin Jefferson

was eventually convicted of being a felon in possession of a

firearm in violation of 28 U.S.C. § 922(a) and sentenced to 91

months in prison.

No. 02-3506 3

that this broad definition of “dispose of” was supported

by two dictionary sources as well as Huddleston v. United

States, 415 U.S. 814, 821 (1974), in which the Supreme

Court held that a pawnbroker “disposes of” a firearm

when he allows a felon to redeem it. Jefferson vigorously

opposed this instruction. Jefferson disputed the validity

of the selected dictionary definitions and argued that

such a broad definition would constructively amend the

indictment. The district court, citing United States v.

Monteleone, 77 F.3d 1086, 1092 (8th Cir. 1996), gave

its own jury instruction broadly defining “dispose of”: “The

term ‘dispose of’ as used in the indictment means to

transfer a firearm so that the transferee acquires pos-

session of the firearm.” A jury convicted Correy Jefferson

on May 13, 2002, and he was sentenced to 21 months in

prison.

II.

We review a district court’s decisions with respect to

jury instructions for abuse of discretion, approving on

appeal instructions that “fairly and accurately” summarize

the law and have support in the record. United States v.

Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003). However, we

determine de novo whether an instruction fairly and

accurately summarizes the law or is legally erroneous.

United States v. Smith, 308 F.3d 726, 740 (7th Cir. 2002);

Savino v. C.P. Hall Co., 199 F.3d 925, 934 (7th Cir. 1999).

Jefferson presents the principal subject in dispute, the

meaning of “dispose of,” in three ways. First, he argues that

the jury instruction as given constituted an improper

constructive amendment of the indictment. Second, he ar-

gues that the government did not present sufficient evi-

dence to support the jury’s verdict. Finally, he alleges

that the jury instruction itself was not a proper statement

of the law.

4 No. 02-3506

The constructive amendment argument does not get

Jefferson very far. “[A] constructive amendment occurs

where proof at trial goes beyond the parameters of the

indictment in that it establishes offenses different from

or in addition to those charged by the grand jury. Such

error . . . which in a jury trial can also be generated or

exacerbated by faulty instructions, violates the Fifth

Amendment since the Grand Jury Clause limits the avail-

able bases for conviction to those contained in the indict-

ment.” United States v. Pigee, 197 F.3d 879, 886 (7th Cir.

1999) (internal quotation marks omitted). As the govern-

ment agrees, a constructive amendment can be made

either through the evidence or through the jury instruc-

tions.2

Jefferson argues that the definition of “dispose of” in the

district court’s jury instruction was so broad that he

was effectively convicted of aiding and abetting his

brother’s possession in violation of 18 U.S.C. § 922(g),

rather than of delivering a firearm to a felon in violation

of § 922(d), the offense for which he was indicted. Ulti-

mately, this argument only begs the question of the proper

interpretation of § 922(d). If the district court’s instruc-

tion was legally correct (i.e., if § 922(d) does cover Jeffer-

son’s actions), there is no reason to believe that Jeffer-

son was improperly convicted of aiding and abetting his

2

An example of a constructive amendment case, cited by

Jefferson but not on point, is United States v. Stirone, 361 U.S.

212, 215-16 (1960). In Stirone, the defendant was indicted for

obstructing interstate shipments of sand, but at trial the govern-

ment also proffered evidence that the defendant had obstructed

steel shipments. The jury was instructed that it could convict

based on either sand or steel. The Supreme Court held that

the indictment had been amended by the addition of the ob-

struction of steel language in the jury instructions and reversed

the conviction.

No. 02-3506 5

brother’s violation of § 922(g). In fact, the government

expressly rejected the district court’s proposal to include

jury instructions on aiding and abetting. Trial Tr. at 61

(May 13, 2002). Jefferson’s sufficiency-of-the-evidence ar-

gument similarly fails if the district court’s jury instruc-

tion was accurate. If the jury instruction was appropri-

ate, there was clearly sufficient evidence to support the

jury’s verdict. Thus, we move on to the jury instruction

itself.

The core issue is the proper interpretation of “dispose of.”

Jefferson’s argument here is that the temporary transfer

of a gun for safekeeping, the extent of his admission, is

not encompassed by the statutory language. The district

court’s instruction was based on the instruction given

in Monteleone, 77 F.3d at 1092. Salvatore Monteleone had

given his gun for repair to a half-brother whom he

knew to be a felon, in a temporary transfer, also similar

to the one before us inasmuch as it was noncommercial.

The district court in Monteleone provided the following

jury instruction: “[T]he term ‘dispose of’ as used in the

indictment means to transfer a firearm so that the trans-

feree acquires possession of the firearm.” Id. On review, the

Eighth Circuit noted, while reversing the conviction on

other grounds: “This definition of ‘dispose’ is in accord

with the Supreme Court’s decision in Huddleston v.

United States, 415 U.S. 814 (1974). There, in considering

the very language before us in this appeal, the Court

determined that a disposal occurs when a person ‘comes

into possession, control, or power of disposal of a firearm.’ ”

Monteleone, 77 F.3d at 1092 (quoting Huddleston, 415 U.S.

at 823).

While we agree with the general approach of Mon-

teleone, its holding is not as clearly applicable here as

the government would have us believe. First, since the

conviction of the defendant in Monteleone was reversed on

other grounds, the Eighth Circuit’s treatment of the jury

6 No. 02-3506

instruction may be dictum. Second, Monteleone ‘s reliance

on Huddleston is questionable. In Huddleston, the Su-

preme Court considered whether a felon redeeming a

firearm from a pawnshop was “acquiring” the firearm in

violation of § 922(a)(6). William Huddleston had argued

that a redemptive transaction was not a “sale” from the

perspective of the pawnbroker, and so could not be an

“acquisition” with respect to the person redeeming. The

Court disagreed, holding that guns can be acquired not

only through sales but through “other dispositions.” 18

U.S.C. § 922(a)(6). The Court, citing laws regulating the

firearms transactions of pawnbrokers, concluded that

pawnbrokers do “dispose” of firearms when they allow

them to be redeemed by their patrons, even if the redemp-

tion does not constitute a sale.

The problem with relying on Huddleston here is that

pawnshop redemptions are both commercial and final, two

qualities claimed to have been absent in Jefferson’s trans-

fer to his brother. Further, the Huddleston court relied

on both these aspects of pawnshop redemptions in coming

to its conclusion that “disposition” should be read some-

what broadly. And common definitions of the word “dis-

posal” also contain the element of finality. See Merriam-

Webster Dictionary (1990) (disposal: “to transfer to the

control of another; to get rid of; to deal with conclusively ”)

(emphasis added). Further, the principle of ejusdem generis

would suggest that § 922(d) only covers dispositions that

are similar to sales, perhaps in their commercial and final

qualities. Reading § 922(d) to cover noncommercial trans-

actions may even yield a Commerce Clause challenge. But

see United States v. Lemons, 302 F.3d 769, 772 (7th Cir.

2002) (holding that § 922(g)(1) is within congressional

Commerce Clause authority).

Legislative history pulls in both directions. The strongest

evidence for the government comes from a source cited

by the Huddleston court. According to Huddleston, the term

No. 02-3506 7

“dispose” was first used in the National Firearms Act, Pub.

L. No. 73-474, § 1(k), 48 Stat. 1236, 1237 (1934), which

defined “to transfer” as “to sell, assign, pledge, lease, loan,

give away, or otherwise dispose of.” If we derived our

construction from the 1934 law, therefore, disposal would

encompass a wide range of transfers, both temporary and

permanent (e.g., sell or lease) and both commercial and

noncommercial (e.g., sell or give away). On the other hand,

we may also consider the more recent history of § 922(d).

Prior to 1986, § 922 only forbade sales and other disposi-

tions to felons by licensed gun dealers. H.R. Rep. No. 99-495

at 15, reprinted in 1986 U.S.C.C.A.N. 1327, 1341. The

Firearms Owners’ Protection Act, § 102(5), Pub. L. No. 99-

308, 100 Stat. 449, 451 (1986), broadened the statutory

coverage to “close an existing loophole whereby qualified

purchasers have acquired firearms from licensees on

behalf of prohibited persons.” H.R. Rep. No. 99-495 at 17,

reprinted in 1986 U.S.C.C.A.N. 1327, 1343. The new

§ 922(d) “extend[ed] the prohibition which [applied] only to

Federal firearms licensees to all persons who transfer a

firearm.” Id. at 22, 1348. There are two ways to inter-

pret this broadening of the law. The first possible interpre-

tation is that the new language intends to forbid, for non-

dealers, only actions that dealers usually engage in—

commercial, permanent transfers. Or we can read the

change to include under § 922(d) the wider range of trans-

fers that a non-dealer might make (including gratuitous,

temporary transfers). After all, there is no compelling

reason to believe that, when the class of persons covered

is broadened, the meaning of “sell or otherwise dispose

of” should continue to reflect only the sorts of disposi-

tions associated with the former and narrower class of

persons covered.

Although we must keep in mind that ambiguity in

criminal statutes should generally be resolved in favor

of lenity, United States v. Lange, 312 F.3d 263, 266 (7th Cir.

8 No. 02-3506

2002), this maxim must of course yield to the paramount

consideration—to follow congressional intent. Here, our best

evidence of congressional intent is the legislative history

cited above, which indicates that Congress wanted to

broaden the reach of the gun control statute to cover

a wider range of firearms transfers. Given the potential

breadth of the word “disposal,” as contained in the 1934

National Firearms Act, we believe that Congress must

have been aware that non-dealers may be equally likely

to engage in gratuitous, temporary transfers (say, to

family members or friends) as to engage in permanent,

commercial transfers, and must have found both types

of transfers potentially dangerous and undesirable. To

exclude such gratuitous, temporary transfers from the reach

of § 922(d) also ill-serves the purposes of the statute—

Congress presumably did not want guns in the hands of

felons, whether on a temporary or permanent basis,

whether for free or for payment. If Congress really

wanted to strengthen and broaden the reach of the fire-

arms statute, it would not have distinguished between

transfers made at arm’s length for consideration and

gratuitous transfers to friends or family members. We

are not aware of a persuasive reason to make such a

distinction.

The case at hand becomes even clearer when we note

that Congress expressly had in mind, in broadening

§ 922(d), straw purchases “whereby qualified purchasers

have acquired firearms from licensees on behalf of pro-

hibited persons.” H.R. Rep. No. 99-495 at 17, reprinted in

1986 U.S.C.C.A.N. 1327, 1343. After all, Jefferson’s own

argument is that the jury instruction as given broadened

his indictment “to include . . . aiding and abetting a pro-

hibited person in the possession of a firearm” and that

the jury convicted him based on that conduct. Jefferson

Br. at 9-16. As the congressional history shows, such aiding

and abetting, when it amounts to a straw purchase, falls

No. 02-3506 9

precisely within the range of activities prohibited by

§ 922(d). Given the substantial duration of Jefferson’s

transfer to his brother and his brother’s undisputed ex-

clusive control over the firearm, we see no problem with the

district courts’ definition of “dispose of,” “to transfer a

firearm so that the transferee acquires possession of the

firearm.”

III.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-2-03