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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10046
Non-Argument Calendar
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D.C. Docket No. 5:18-cr-00008-TES-CHW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS VEAL,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(December 15, 2020)
Before JORDAN, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Marcus Veal appeals his conviction for possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, he challenges
the indictment, the jury instructions, and the denial of his motion for judgment of
acquittal based on Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019) (holding
that under § 922(g) the government must prove the defendant’s knowledge of his
status as a person prohibited from possessing a firearm). Mr. Veal further argues
that, even if the indictment was valid, the jury instructions constructively amended
the indictment by not requiring the government to prove his knowledge of his felon
status.
Mr. Veal is correct that the government was not asked to prove his knowledge
of his felon status and that the jury instructions failed to properly inform the jury that
his knowledge was an element of the offense, contrary to Rehaif, 139 S. Ct. at 2194.
But because Mr. Veal stipulated at trial to being a felon, see D.E. 27, fled when a
trooper attempted to pull him over, see D.E. 74 at 29–30, and had multiple prior
felony convictions for which he served more than a year in prison, see D.E. 47 at
¶37, we conclude that his rights were not substantially affected by the plain error.
The “record clearly demonstrates that it would be implausible for [Mr. Veal] to not
have been aware of his felony status.” United States v. McLellan, 958 F.3d 1110,
1119 (11th Cir. 2020). Nor did the jury instructions constructively amend the
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indictment such that he could have been convicted of a different offense. We
therefore affirm.
I
On January 21, 2017, a license plate reader alerted a Georgia state trooper that
the car Mr. Veal was driving that day might have a suspended registration. See D.E.
74 at 27. Before the trooper could stop Mr. Veal, he drove into a Taco Bell of his
own accord, at which point the trooper pulled in behind and turned on his lights to
initiate a traffic stop. See id. at 28. Instead of staying in his car as instructed, Mr.
Veal got out of his car and subsequently dropped his phone. See id. at 29. The trooper
gave Mr. Veal permission to pick up his phone, but when Mr. Veal did so he
suddenly shut his door and attempted to flee. See id. at 29. The trooper caught up to
Mr. Veal when he slipped, and a brief struggle ensued. See id. at 37. As the trooper
handcuffed one of Mr. Veal’s arms behind his back, Mr. Veal rolled towards the
officer, revealing a black firearm laying on the ground by his waist. See id. at 37–
38. Mr. Veal was subsequently arrested and charged with possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
At trial, Mr. Veal stipulated that the gun had a sufficient nexus with interstate
commerce and that he was a felon. See D.E. 27. After the government rested, Mr.
Veal moved for a judgment of acquittal on the ground that the government had failed
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to provide “enough proof to prove beyond a reasonable doubt that he was in a
possession of the firearm.” D.E. 74 at 117. The district court denied the motion and
Mr. Veal did not present a defense. See id. at 117–18.
The jury instructions defined the elements of the § 922(g) offense as follows:
The Defendant can be found guilty of this crime only if all the following
facts are proved beyond a reasonable doubt: (1) the Defendant
knowingly possessed a firearm in or affecting interstate or foreign
commerce; and (2) before possessing the firearm, the Defendant had
been convicted of a felony—a crime punishable by imprisonment for
more than one year.
D.E. 75 at 33–34. The district court defined “knowingly” as “an act done voluntarily
and intentionally and not because of a mistake or accident.” Id. at 33. The court did
not instruct the jury that it had to find, and that the government had to prove, that
Mr. Veal knew he was a felon in order to find him guilty.
After a brief deliberation, the jury returned a guilty verdict. Before sentencing,
a probation officer prepared a presentence investigation report (“PSR”), which
included Mr. Veal’s criminal history. See PSR ¶¶ 25-51. Among others, the PSR
listed prior convictions for financial transaction card theft, financial transaction card
fraud, and possession of cocaine. See Id. ¶ 37. For these crimes, Mr. Veal was
sentenced to three- and four-years’ imprisonment to run concurrently, with two years
to be served for each. Mr. Veal served over a year in prison for these convictions.
Id.
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The district court sentenced Mr. Veal to 96 months’ imprisonment followed
by 3 years of supervised release. Mr. Veal never objected at trial or sentencing to his
status as a felon, the jury instructions, the PSR, or the indictment. We directed
counsel to file a merits brief addressing whether the indictment, jury instructions,
and the denial of a judgment of acquittal constituted plain error in light of the
Supreme Court’s decision in Rehaif, and our decision in United States v. Reed, 941
F.3d 1018 (11th Cir. 2019).
II
In relevant part, § 922(g) provides that it is “unlawful for any person” who
has been convicted of “a crime punishable by a term exceeding one year” to “possess
in or affecting commerce, any firearm or ammunition.” And § 924(a)(2) provides
that any person who “knowingly violates” § 922(g) may be imprisoned for up to 10
years. In Rehaif, the Supreme Court held that, “in a prosecution under . . . § 922(g)
and § 924(a)(2), the Government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant category of persons
barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200.
Ordinarily, we review de novo the validity of the indictment, the legal
correctness of jury instructions, the sufficiency of the evidence, and the alleged
constructive amendment of the indictment. See United States v. Chalker, 966 F.3d
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1177, 1190 (11th Cir. 2020); United States v. Focia, 869 F.3d 1269, 1278, 1280
(11th Cir. 2017); United States v. Feldman, 931 F.3d 1245, 1253 (11th Cir. 2019).
But, when a defendant asserts these challenges for the first time on appeal, we review
only for plain error. See, e.g., Reed, 941 F.3d at 1020; United States v. Leon, 841
F.3d 1187, 1190 (11th Cir. 2016).
Under the plain error standard, a defendant must “show that there is (1) error,
(2) that is plain and (3) that affects substantial rights.” United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007) (quotation marks omitted). “If all three conditions
are met, [we] may then exercise [our] discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation marks omitted). To prove that an error affected his
substantial rights, a defendant “must show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Molina-Martinez
v. United States, 136 S. Ct. 1338, 1343 (2016). We must consider the entire record
“when considering the effect of any error on [a defendant’s] substantial rights.”
Reed, 941 F.3d at 1021 (quotation marks omitted).
We have recently considered plain error challenges to convictions under 18
U.S.C. §§ 922(g)(1) and 924(a)(2) following the Supreme Court’s clarification of
the requisite mens rea in Rehaif. In these cases, we have held that plain error exists
“when [an] indictment failed to allege that [the defendant] knew he was a felon[,] . .
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. when the jury was not instructed to find that [the defendant] knew he was a felon[,]
[a]nd . . . when the government was not required to prove that [the defendant] knew
he was a felon” at trial. Reed, 941 F.3d at 1021. But we have explained that, even
where the Reed elements are met, a Rehaif error does not affect a defendant’s
substantial rights if “the record clearly demonstrates that it would be implausible for
the defendant to not have been aware of his felony status.” United States v.
McLellan, 958 F.3d 1110, 1119 (11th Cir. 2020).
In Reed, for example, we concluded that “the record establishe[d] that [the
defendant] knew he was a felon” because (1) he had 8 prior felony convictions,
(2) he admitted at sentencing to having served at least 18 years in prison prior to the
instant offense, and (3) the jury could have inferred—from his stipulation to being a
felon and his testimony that he knew that he was not supposed to have a gun—that
he had knowledge of his felon status. See Reed, 941 F.3d at 1021-22.
Similarly, in McLellan, we concluded that it would be “inconceivable” that
the defendant did not know of his felon status because he had (1) served
approximately 10 years in prison, on and off, for multiple prior felonies, (2) served
an almost 8-year long sentence previously, (3) acknowledged that he was sent to
prison for 10 years at sentencing, and (4) stated at sentencing that he knew that he
was not permitted to possess a firearm because of his felon status. See McLellan,
958 F.3d at 1119.
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Here, Mr. Veal stipulated to his status as a felon at the time he possessed the
firearm. He does not allege that, at the time he possessed the firearm, he was
subjectively unaware of his objective status as a felon. Regardless, the government
could have proved his subjective knowledge of his status because the record
confirms that he had multiple felony convictions including one other for which he
cumulatively served over a year. In addition, his flight provided another basis for
an inference of his knowledge of his status. See Reed, 941 F.3d at 1022; PSR ¶¶ 25–
32. Taking the record as a whole, Mr. Veal has failed to meet his high burden under
plain error review to show a “reasonable probability that, but for the error[s], the
outcome of the proceeding would have been different.” Molina-Martinez, 136 S. Ct.
at 1343.
Mr. Veal’s challenge to the sufficiency of the indictment also fails due to his
inability to establish that the error affected his substantial rights. An indictment is
sufficient if it tracks the statutory language and approximately states the time and
place of the alleged crime. See id. at 1332; United States v. Brown, 752 F.3d 1344,
1353 (11th Cir. 2014). An indictment whose sole defect is the failure to include the
knowledge-of-felon-status requirement, without more, does not deprive the district
court of its jurisdiction and so is reviewed for plain error if a challenge was not
properly preserved. See, e.g., United States v. Moore, 954 F.3d 1322, 1332 (11th Cir.
2020) (rejecting the defendant’s argument that such an omission resulted in an
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indictment that failed to state a crime). Accord Reed, 941 F.3d at 1021–1022;
McLellan, 958 F.3d at 1118. Because the record indicates that he knew of his felon
status, Mr. Veal cannot show that the error affected his substantial rights.
Finally, because we have held that the indictment and the jury instructions
contained the same error of omitting the knowledge-of-felon-status requirement,
there was not a constructive amendment. A “constructive amendment to the
indictment occurs where the jury instructions so modify the elements of the offense
charged that the defendant may have been convicted on a ground not alleged by the
grand jury’s indictment.” United States v. Sanders, 668 F.3d 1298, 1309 (11th Cir.
2012) (quotation marks omitted). Here, both the indictment and the jury instructions
improperly omitted the same element of the crime and so the jury instructions did
not modify the elements of the offense charged in the indictment. Instead, Mr. Veal’s
challenges to the indictment and jury instructions fail under the plain-error standard
because Mr. Veal has not met his high burden of showing that these errors affected
his substantial rights. See, e.g., Moore, 954 F.3d at 1337–1338; Reed, 941 F.3d at
1021–1022; McLellan, 958 F.3d at 1119.
III
Because Mr. Veal raises his Rehaif-based challenges to the indictment, jury
instructions, and sufficiency of the evidence for the first time on appeal, plain error
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review applies to each of his claims. Although there was plain error in the indictment
and jury instructions, these challenges fail because the record establishes that Mr.
Veal knew that he was a felon from (1) his stipulation admitting to being one and
(2) his prior felony convictions for which he served more than a year in prison. For
these reasons, he has not shown how any plain error has affected his substantial
rights. And his constructive amendment argument fails because the jury instructions
did not alter the elements of the offense so that he could have been convicted of
anything other than being a felon in possession of a firearm.
We affirm Mr. Veal’s conviction.
AFFIRMED.
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