Monday, February 26, 2007

Indictment Failed to Charge a 924(c), But Court Declines to Correct Plain Error

United States v. McGilberry, No. 04-60701 (5th Cir. Feb. 21, 2007) (Smith, Benavides, Prado)

McGilberry was initially charged just with being a felon in possession of a firearm. A week before trial, the Government hit him with a superseding indictment that added an 18 U.S.C. § 924(c)(1) count alleging McGilberry "knowingly possess[ed] a firearm . . . during and in relation to a drug trafficking crime." Slip op. at 2. "The instructions allowed the jury to convict on this second charge only if it found that McGilberry 'knowingly carried a firearm during and in relation to [his] alleged commission of the crime of possession of cocaine base with intent to distribute.' The jury convicted McGilberry on both counts." Id. at 3.

McGilberry appealed, arguing that the indictment failed to charge a 924(c) offense. Because McGilberry failed to challenge the indictment in the distirct court, the court of appeals reviewed for plain error. The court held that there was indeed error that was plain because the Government had played mix-and-match with the elements of two different offenses in 924(c), resulting in an indictment that charged a combination of elements that don't constitute any offense:
Section 924 refers to someone who either “uses or carries a firearm . . . during and in relation to any . . . drug trafficking crime,” or someone “who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). When the conduct charged is possession of a firearm, the appropriate standard of participation is “in furtherance of” a crime. However, if the defendant uses or carries a firearm, the participation standard is “during and in relation to” a crime. Here, the indictment erroneously combined the “possession” prong of the statute with the “during and in relation to” prong, thereby failing to list the essential elements of any criminal conduct.

Slip op. at 4 (citation omitted). However, the court also held that the plain error did not affect the fairness, integrity, or public reputation of the proceedings, for two reasons. First, "the evidence that McGilberry used or carried the firearm in question was 'essentially uncontroverted.'" Id. at 8 (citation omitted). Second, the district court correctly instructed the jury on the elements of carrying a firearm during and in relation to a drug trafficking crime.

Which brings up the second issue raised by McGilberry, namely his argument that the district court constructively amended the indictment with its instruction to the jury that it must find that he carried the firearm in order to find him guilty. The court reviewed this issue, too, for plain error. It held that even if there was error, any error did not seriously affect the fairness, integrity or public reputation of the proceedings because the court's instruction narrowed the grounds for conviction by requiring a finding of carrying the firearm rather than merely possessing it, and the instruction was otherwise a correct statement of the elements of a 924(c) offense.



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