United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3320
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Doyle C. Alcorn, *
*
Defendant - Appellant. *
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Submitted: April 11, 2011
Filed: May 13, 2011
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Before LOKEN, BALDOCK,1 and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Doyle C. Alcorn was charged with being a felon in possession of a firearm and
manufacturing marijuana. A jury found him guilty of both crimes, and the district
court2 sentenced Alcorn to two concurrent twenty month sentences. Alcorn appeals,
arguing that the district court erred by giving the jury only a general unanimity
1
The Honorable Bobby R. Baldock, Circuit Judge, United States Court of
Appeals for the Tenth Circuit, sitting by designation.
2
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
instruction, by refusing his request for an instruction on entrapment or estoppel, and
by denying his motion for a judgment of acquittal.3 We affirm.
I.
Police first visited Alcorn's home on August 11, 2009 after marijuana plants
growing on his property caught the eye of a spotter in a Missouri state police
helicopter. Officers in the helicopter directed their colleagues on the ground to
Alcorn's property. Officers Shawn Dougherty and Eric Hackman knocked on Alcorn's
door and were met there by Alcorn's daughter, who told the officers that the plants
belonged to her father. Alcorn returned home shortly thereafter and gave the officers
permission to search his property. After being advised of his Miranda rights, Alcorn
showed the officers marijuana plants growing on the property as well as processed
marijuana which the officers seized. Alcorn admitted to growing marijuana and also
stated that he had been convicted previously for possession of a pound of marijuana.
The officers were called away from Alcorn's house by a report that someone was
attempting to burn a marijuana patch at a different location.
Dougherty returned to Alcorn's home a few days later and took his fingerprints.
Dougherty asked Alcorn if he had firearms in the house, and Alcorn confirmed that
he did. Alcorn showed Dougherty a locked gun safe and told Dougherty that he not
have the key to the safe but that there were two guns inside. According to Dougherty,
Alcorn then led the officer to his bedroom closet and told him that there was a shotgun
inside. Alcorn denies having told Dougherty that there was a shotgun in the closet,
claiming that he became aware of its presence when Dougherty found it there.
Dougherty examined the shotgun but did not seize it on that visit. Instead he left the
gun in the home and departed.
3
In a pro se letter sent to the court after oral argument, Alcorn has raised new
concerns about his counsel, his son in law, and the police officers in this case. To the
extent relevant he may wish to pursue them in a petition under 28 U.S.C. § 2255.
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Dougherty reported the firearms in Alcorn's home to ATF Special Agent John
Taylor. Accompanied by Taylor, Dougherty returned to Alcorn's home for a third
time on August 20, 2009. Alcorn had meanwhile obtained the key to the gun safe, and
he showed the officers the two guns inside it. Taylor then informed Alcorn of his
Miranda rights. The officers proceeded to Alcorn's bedroom closet, where they found
the shotgun and again examined it. According to the officers, Alcorn told them that
he had paid $150 to buy the gun from his son in law. According to Alcorn, his son in
law was the owner of the gun and had offered to sell it to him, but Alcorn did not want
to purchase it because he knew that he could not legally possess it as a convicted
felon. The officers seized the shotgun.
Alcorn was charged with being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1) and with manufacturing marijuana in violation of 21 U.S.C.
§ 841(a)(1). He was tried before a jury which found him guilty of both crimes. The
district court sentenced him to two concurrent twenty month sentences. Alcorn now
argues that the district court denied him his right to a unanimous verdict by failing to
instruct the jury adequately and erred by denying his request for an entrapment by
estoppel instruction and his motion for a judgment of acquittal.
II.
Alcorn contends that the district court's general unanimity instruction was not
sufficient to ensure that the jury agreed on the factual basis of his gun possession
conviction. He contends that special unanimity instruction was required, though he
admits that he did not request one at trial.
Alcorn argues that we should review this issue de novo in spite of his failure to
raise this issue below, citing Black v. United States, 130 S.Ct. 2963, 2966 (2010).
Black is different from this case, however, because the government conceded there
that the defendants had "preserved their instructional challenge," and the Court
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concluded that the defendants had "properly object[ed]" at trial. Id. at 2969 n.12 &
2970. Because Alcorn failed to request a special jury instruction or otherwise raise
the issue below, we review the court's unanimity instruction for plain error. See
United States v. Vanover, 630 F.3d 1108, 1119 (8th Cir. 2011); United States v.
Kempis-Bonola, 287 F.3d 699, 701 (8th Cir. 2002).
The indictment charged Alcorn with possessing a firearm "on or about August
20, 2009." The court instructed the jury that it was "not necessary for the government
to prove that the offense was committed precisely on the date charged" and that a
guilty verdict must be unanimous. Alcorn notes that in its closing argument the
government asserted that Alcorn was in possession of the shotgun on the day of the
officers' second visit (sometime after August 11 but before August 20) and also on
their third visit on August 20. Alcorn contends that some jurors might have thought
that he knowingly possessed the shotgun at the time of Dougherty's second visit to his
home, while others might have thought that he was only in knowing possession of the
gun after that visit. Alcorn argues that the jury should have been instructed that it
must find unanimously that he possessed the gun on a particular date.
We rejected a similar argument in United States v. Brody, 486 F.2d 291, 292
(8th Cir. 1973). There, the defendants were charged with possessing an unregistered
shotgun in violation of 26 U.S.C. § 5861. The indictment in Brody, as here, charged
the defendants with possessing the shotgun "on or about" a certain day. During its
deliberations the jury asked the trial court whether the indictment covered only the
date of arrest or "any previous time covered by the evidence at trial." The court
responded to the jury that "[t]he 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 found those instructions to be proper and that an "on or about
charge" effectively "encompasses possession on days other than that specified." Id.
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We have not found unanimity concerns with such instructions, even where the
government has presented theories of possession on different dates. In United States
v. Howe, for example, the defendant was charged with being a felon in possession of
a handgun on or about December 6, 2002, but the government also argued that the
defendant was in possession of a gun three months before that date. 538 F.3d 842,
850 (8th Cir. 2008), abrogated on other grounds by United States v. Villareal-
Amarillas, 562 F.3d 892, 896 (8th Cir. 2009).
Noting that the date of possession is "not a material element of the felon in
possession of a firearm charge," we rejected the notion that evidence and arguments
about a date other than that listed in the indictment "contributed to the existence of a
variance or a constructive amendment" of the indictment. Howe, 538 F.3d at 851 n.4.
For the same reasons, we conclude that the district court committed no plain error in
its decision to give the jury only a general unanimity instruction.
III.
Alcorn contends that the district court erred by refusing to grant his motion for
acquittal on the basis of entrapment or, in the alternative, by rejecting his request for
a jury instruction on that defense. We review de novo the district court's denial of
instructions for an entrapment defense. United States v. Young, 613 F.3d 735, 743
(8th Cir. 2010). We also review de novo the district court's denial of a motion of
acquittal on the basis of entrapment, viewing the evidence in the light most favorable
to the government. United States v. Crump, 934 F.2d 947, 956 (8th Cir. 1991).
Entrapment by estoppel applies “when an official assures a defendant that
certain conduct is legal, and the defendant reasonably relies on that advice and
continues or initiates the conduct.” United States v. Benning, 248 F.3d 772, 775 (8th
Cir. 2001). The "government official must be guilty of affirmative misconduct in
order for a defendant to put forth a viable defense of entrapment by estoppel." Id. A
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defendant is entitled to an entrapment instruction when "there exists evidence
sufficient for a reasonable jury to find in his favor," even when the defendant also
denies an element of the offense in question. Mathews v. United States, 485 U.S. 58,
63 (1988).
Alcorn contends that he was entitled to an entrapment instruction because
Dougherty's "nonverbal act of leaving the firearm in [Alcorn's] closet" upon
discovering it on his second visit "was a powerful 'inducement' by an agent of the
government to commit the illegal act." The government responds that Alcorn has not
shown "any statement by Dougherty that could be fairly interpreted as a representation
that Alcorn could possess a firearm." We agree that the record gives no indication that
Dougherty was guilty of any "affirmative misconduct" or that he ever assured Alcorn
that his possession of the gun was legal. See Benning, 248 F.3d at 775. Dougherty
never told Alcorn that his possession of a gun was anything but illegal.
Alcorn's reliance on Raley v. Ohio, 360 U.S. 423, 437-38 (1959), is misplaced.
There, the defendants had been witnesses called before the Ohio UnAmerican
Activities Commission. The state erroneously informed the defendants that they could
invoke their Fifth Amendment privilege against self incrimination, but they were
subsequently prosecuted for their mistaken exercise of that privilege. The Court
concluded that the defendants were entitled to an entrapment defense because they
were victims of "active misleading" by the government. Id. at 438. Here the record
reflects that Dougherty made no statements or actions which could be construed as
actively misleading Alcorn into believing that his possession of the shotgun was
lawful.
Since Alcorn did not show the required elements of an entrapment defense, the
district court committed no error by refusing to grant his motion for a judgment of
acquittal on the basis of entrapment or his request for jury instructions on that defense.
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IV.
After a careful review of the record, we affirm the judgment of the district
court.
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