Firearms and Drug Trafficking Convictions Affirmed Over Challenges to Indictment, Juror Dismissal, Instructions, Consent-to-Search Question, and Evidence Sufficiency

United States v. Cooper, No. 11-20711 (Apr. 26, 2013) (Stewart, Davis, Clement)

The panel addressed arguments challenging Cooper’s indictment and trial, ultimately affirming his conviction for a number of drug and firearms offenses.

Indictment Sufficient and Jury Instructions Not a Constructive AmendmentCooper challenged the sufficiency of Counts 2 and 4 of the indictment, which alleged violations of 18 U.S.C. § 924(c) with the caption "Possessing a Firearm in Furtherance of a Drug Trafficking Crime" but the allegations that he "knowingly possessed a firearm . . . during and in relation to a drug trafficking crime." Cooper argued that the allegations of "during and in relation to" do not arise to a violation of § 924(c) and that the indictment improperly combined elements of two different types of conduct proscribed by § 924(c). The panel held that the caption cured any ambiguity of the charged offense conduct and that, viewed practically, the indictment contained all the elements of the offenses charged. Since the indictment was sufficient, the panel also held that the district court’s instructions regarding the possession of a firearm "in furtherance of" a drug trafficking offense did not broaden the bases of conviction beyond the indictment and did not amount to a constructive amendment.

No Abuse of Discretion to Not Dismiss Juror
The panel found that the district court did not abuse its discretion by not striking a juror who responded to a question as to whether the race of the black men who had burgled the juror’s home years ago would impact his treatment of Cooper, who is also black, by saying that he "would try to be impartial."

Affirmed Denial of Lesser-Included-Offense InstructionCooper proposed a lesser-included-offense jury instruction of simple possession for the count that charged him with possession with intent to distribute more than fifty grams of crack cocaine. Given the evidence presented at trial of crack cocaine weighing approximately 42 grams and drug manufacturing and distribution paraphernalia found in Cooper’s house, the panel found "no abuse of discretion in the district court’s holding that no jury could rationally find Cooper guilty of only simple possession."

No Due Process Violation by Improper Government Statements at TrialAt trial, the Government asked a police officer witness whether he had asked Cooper for consent to search his house. Cooper objected that this was an impermissible inquiry into Cooper’s invocation of his Fourth Amendment right not to consent to a search. The Government’s witness never answered the question, so the jury never heard whether Cooper had refused permission for a warrantless search. "Because of the extremely limited impact of the objected-to question on the trial proceedings and the substantiality of the evidence presented," the panel concluded "that the Government’s question did not prejudice Cooper’s substantive rights and was, if erroneous at all, harmless error."

Inoperable Firearms Can Support Possession of Firearms ConvictionsCooper argued that the evidence supporting his convictions for possession of firearms was insufficient because the Government did not introduce any evidence showing that the firearms were actually capable of firing. The panel rejected this argument since the definition of "firearm" includes any weapon that "is designed to or may readily be converted to expel a projectile by the action of an explosive . . . ." The panel found that a rational jury could find, based on the evidence presented, that Cooper possessed firearms as defined by 18 U.S.C. § 921(a)(3).

Each Receipt of Money Is Separate Offense Under 18 U.S.C. § 641

United States v. Reagan, No. 08-11006 (5th Cir. Feb. 4, 2010) (King, Barksdale, Elrod)

Ever wondered what the unit of prosecution is under the theft of public money statute, 18 U.S.C. § 641? Then read on.

Reagan was charged under 18 U.S.C. § 641 for improperly receiving $41,832 over five years in Section 8 program payments from the Dallas Housing Authority (DHA), which administers funding provided by the Department of Housing and Urban Development (HUD). The Section 8 program subsidizes rent for low income persons. Reagan jointly owned a residential property with his wife, Debra Kirvin, and, in 2002, leased this property to his wife’s mother, Leatha Kervin, a participant in the Section 8 program. One of the documents that Reagan signed and filed with the DHA to initiate Section 8 benefits included the disclaimer that “the owner (including a principal or other interested party) is not the parent, child, grandparent, sister, or brother of any member of the family.” In another document signed and filed with the DHA, Reagan similarly promised that he had “no blood, marital or other familial relationship” with the Section 8 recipient. Reagan received monthly checks from the DHA from March 2002 until September 2007, when his relationship to Leatha Kervin was discovered. Reagan was charged under § 641 with five counts of receipt of public funds, one count for each year that he received monthly Section 8 payments.

Reagan was convicted of all five counts. On appeal he argued "that the indictment was multiplicitous because although it charged five separate offenses, all 'stem[med] from a single fraudulent ac[t] in the first year.'" The Government, as you might imagine, argued that multiple counts were appropriate because Reagan violated § 641 each time he received a payment.

As multiplicity mavens know well, the the question boils down to the unit of prosecution for the offense, which depends on what the statute says.

Section 641 penalizes “[w]hoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641. No case has been reported discussing the “allowable unit of prosecution” under § 641. Courts interpreting similarly-worded statutes, however, have concluded that each distinct taking of funds constitutes a separate violation under the statute.

Like those other statutes,

§ 641 punishes “[w]hoever embezzles, steals, purloins or knowingly converts to his use . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641 (emphases added). Accordingly, we hold that the “allowable unit of prosecution” under § 641 is each individual transaction in which government money is received, even if the transaction is part of an overarching scheme. Reagan violated § 641 each time he converted a HUD check. The five counts against Reagan therefore were not multiplicitous.

Reagan raised a couple of other challenges to his conviction, but the court declined to address them:

Reagan, who is represented by appointed counsel, does nothing beyond listing these points of error—he offers no further arguments or explanation. This is a failure to brief and constitutes waiver.

* * *

Reagan does not provide citations to any evidence in the record to support his claim. By failing to do so, Reagan has failed to show a “sufficient evidentiary foundation” for the requested instruction and therefore cannot establish abuse of discretion. This is also a failure to brief.

* * *

Reagan argues that “[t]he law favors cautioning jurors under such circumstances to take the testimony of the hostile, accomplice witness with a grain of salt,” but offers no further legal analysis.

Ouch.

No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at Trial

United States v. Midkiff, No. 07-30981 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint: it's not substance.)

Midkiff also argues that his convictions for possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon should be reversed because the serial number provided in the indictment for the firearm at issue was not the same as the serial number for the firearm introduced as evidence at trial. He argues that the district court erred by permitting an amendment to the indictment after the close of all evidence, particularly when the government had knowledge of the discrepancy early in the trial, if not earlier, and failed to move to amend until evidence was closed.

Generally, indictments can only be amended by a grand jury. But, “[t]he form of an indictment may be amended without return to the grand jury so long as its substance remains the same,” such as by correcting a “misnomer” or mistake of form. Thus, the issue is whether the amendment to the serial number constituted a change in form akin to correcting a typographical error or a change in substance that impermissibly altered the indictment.

Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. . . .

We also have noted that “[a]n amendment will be allowed if a defendant’s rights are not affected and he is adequately apprised of the charges against him so that he is protected against surprise at trial . . . .” In this case, Midkiff has not contended that he was prejudiced either by the amendment itself, or by the district court’s decision to permit the amendment after the government had rested. He does not claim that he was surprised by the trial evidence, or that his ability to defend the charges was impaired in any way. Given that Midkiff has neither alleged nor shown prejudice, we find no abuse of discretion in the district court’s decision to allow the government to reopen its case to amend the indictment.

(cites omitted). Another way to say it would be: We find no error in permitting the Government to amend the indictment to conform to the evidence it actually introduced at trial.

Snark aside, it's hard to say how far this holding would extend, since the opinion doesn't explain the exact difference between the two serial numbers. If it's a matter of one digit (as in one of the cases from another circuit), then the holding makes sense. At the other extreme, a serial number from an entirely different gun (different type, manufacturer, etc.) would seem to be more than just a misnomer. Lots of hypos in between.

Indictment Challenges Rejected, But Sentence Reversed Because Bank Robbery (18 U.S.C. § 2113(a)) is Not a COV for Career Offender Purposes

United States v. Dentler, No. 06-50272 (5th Cir. July 3, 2007) (Davis, Dennis, Prado)

Dentler was convicted of violating 18 U.S.C. § 2113(a), the federal bank robbery statute. Application of a career offender enhancement raised his advisory guideline range substantially, and he was sentenced to the statutory maximum of 20 years' imprisonment. Dentler challenged his conviction and sentence on appeal. Although the court affirmed his conviction, it held that the career offender enhancement was erroneously applied, and remanded his case for resentencing.

Dentler attacked his conviction on two grounds, both of which involved the indictment. First, he argued that his indictment failed to charge an offense. Section 2113(a) defines two separate crimes: 1) bank robbery using force and violence or intimidation, and 2) entering a bank with intent to commit larceny or a felony affecting the bank. Dentler's indictment alleged that he attempted to enter a bank with intent to commit robbery by taking money belonging to the bank. As the court observed,

[Dentler's] indictment fails to assert, on its face, a full set of elements for either crime: it is missing either the allegation that Dentler intended a taking “by force and violence or intimidation” (under the first paragraph of section 2113(a)) or that the felony he intended to commit at the time he entered the bank affected the bank (under the second paragraph of section 2113(a)).

The court assumed, for the sake of argument, that this constituted an error in the indictment, and turned to whether the error was harmless. (Note that the question of whether the omission of an element from an indictment can ever be harmless error is one that the Supreme Court has yet to decide. It granted cert on that issue in United States v. Resendiz-Ponce, but never reached the issue because it held that the indictment in question hadn't omitted an element in the first place.)

[I]n determining whether any error by the district court was harmless, we ask (1) whether the indictment provided Dentler sufficient notice of the crime with which he had been charged and (2) whether Dentler was harmed by “losing the right to have the public determine whether there existed probable cause to charge” the missing element.

The court held that the indictment provided sufficient notice that Dentler was charged under the felony-affecting-the-bank portion of § 2113(a):

The indictment plainly states that Dentler stands accused of an attempt to enter the bank to commit robbery by taking money belonging to that bank. Although the indictment could have drafted with greater skill, we cannot read it to accuse Dentler of anything but attempting to enter with the intent to commit bank robbery, despite the absence of a specific reference to “bank robbery” or the inclusion of the missing element of bank robbery, i.e., the use of force or intimidation.

It then held that there was no harm in not having the grand jury charge the missing element (the use of force or intimidation, which was the missing element of the intended felony of bank robbery), because the jury instructions required the petit jury to find that Dentler intended to use force and violence or intimidation (more on that in a second), and there was ample evidence from which "a rational grand jury could find probable cause existed to charge Dentler with the use of force and violence or intimidation."

Dentler's second argument was that the jury instructions constructively amended the indictment by requiring the jury to find that he "attempted to take the money by means of force and violence or by means of intimidation." The court held, in conclusory fashion, that this language "is properly considered a variance, rather than an amendment," because it did not allow the jury to convict him "upon a factual basis that effectively modifie[d] an essential element of the offense charged."

But all hope was not lost. As mentioned at the outset, Dentler did prevail on his challenge to his sentence. The district court concluded that the instant offense was a "crime of violence" as defined in U.S.S.G. §4B1.2(a), thereby triggering a career offender enhancement. That was error:

18 U.S.C. § 924(c) sets out a definition for crimes of violence very similar to that used by the Sentencing Guidelines. We have held that the second paragraph of § 2113(a) (under which Dentler was convicted) does not constitute a crime of violence under that definition. United States v. Jones, 993 F.2d 58, 61-62 (5th Cir. 1993).

And the error was not harmless, because even in an advisory guideline world a sentence imposed "as a result of an incorrect application of the sentencing guidelines" must be vacated. That's what happened here:

The district court’s error in classing Dentler’s offense as a crime of violence resulted in a sentencing range where the lowest possible sentence is 65 months higher than the top of the range he should have received --- such a gap affects his substantial rights.