Case: 08-10494 Document: 00511057331 Page: 1 Date Filed: 03/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 19, 2010
No. 08-10494 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
COREY BROADNAX,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
No member of the panel nor judge in regular active service of the court
having requested that the court be polled on Rehearing En Banc (F ED. R.A PP. P.
and 5 TH C IR. R. 35), the Petition for Rehearing En Banc is DENIED. We also
deny Panel Rehearing but withdraw our prior opinion, issued on January 26,
2010, and substitute the following.
Corey Broadnax appeals his conviction for being a felon in possession of
a firearm, in violation of 18 U.S.C.§ 922(g)(1). For the reasons set forth below,
we AFFIRM.
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I
The following facts are undisputed. An undercover narcotics officer with
the Dallas Police Department made an “undercover buy” of crack cocaine from
a person at the window of the back of a house located at 915 North Jester Street
in Dallas, Texas. The officer identified the seller as Corey Broadnax. The officer
conducted additional surveillance and witnessed Broadnax entering and exiting
the house. Based on the “buy,” the police obtained an arrest warrant for
Broadnax and a search warrant for the premises at 915 North Jester. They
executed the warrants and arrested Broadnax as he was walking out the front
door of the premises. The police seized from the house an RG Industries, Model
RG 31, .38 caliber revolver, serial number 019420; rocks of crack cocaine; cash;
a digital scale; and documents linking Broadnax to the residence.
The grand jury returned a single-count indictment charging Broadnax
with violation of 18 U.S.C. § 922(g)(1). Broadnax pleaded not guilty and
proceeded to trial before a jury.
Broadnax is a convicted felon with a lengthy criminal history.1 Rather
than submitting evidence to the jury of his prior convictions, the government and
Broadnax agreed to the following stipulation:
The undersigned agree that the following facts are true and correct
and that they are to be accepted as evidence by the jury in this case.
Prior to February 5, 2007, the defendant, Corey Jerome Broadnax,
had been convicted in a court for a crime punishable by
1
The record reveals that in 1994 Broadnax pleaded guilty to aggravated assault and
was sentenced to a probationary term; his probation was later revoked and he was sentenced
to seven years’ imprisonment. In 2005, he pleaded guilty to a felony drug possession charge
and the felony offense of “possession of a prohibited weapon” and sentenced to two years’
imprisonment. While on probation for those charges in 2006, Broadnax pleaded guilty to
additional drug possession charges and received a two-year sentence. While on probation for
the 2005 offenses and on bond for the 2006 offenses, Broadnax was arrested as a result of the
undercover drug operation that gave rise to the instant appeal. In relation to that arrest,
Broadnax was convicted of “delivery of a controlled substance” and “possession of a controlled
substance” and sentenced to two years and 180 days, respectively.
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imprisonment for a term exceeding one year, that is, a felony
offense.
To establish the interstate nexus element, the government presented testimony
of Special Agent Daniel Meade of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF). Meade is formally trained in trafficking techniques for
firearms in the United States and his job is to determine whether or not a
particular firearm traveled in or affected interstate commerce. Meade testified
that the RG Industries, Model RG 31, .38 caliber revolver, serial number 019420
was a firearm. He testified that RG Industries is located in Miami, Florida,
“where this firearm would have been assembled” and also stated that “[t]his
particular firearm, the frame was manufactured in Miami, Florida . . . .” Meade
further testified that “[o]ther than the gun] being bought and sold through
interstate commerce, I don’t know how it particularly got to Texas in this
instance, but it would have been bought and sold in commerce.”
At the close of the government’s case, Broadnax moved for acquittal
pursuant to F ED. R. C RIM. P. 29. He moved again at the close of all evidence.
The district court denied both motions. The jury found Broadnax guilty.
Broadnax renewed his motion for acquittal and the district court again denied
the motion. The district court sentenced Broadnax to 100 months’ imprisonment
to be followed by two years of supervised release.
In his timely appeal to this court, Broadnax contends, inter alia, that the
district court’s definition of “firearm” resulted in a constructive amendment of
the indictment by allowing the government to prove only that the frame of the
RG revolver, rather than the specified, completed weapon moved in interstate
commerce. Broadnax also argues that his conviction may not be sustained on
the evidence before the jury because the government did not prove that the
revolver identified in the indictment was “in or affecting interstate commerce”
and that the prior felony stipulation did not prove a “crime punishable by
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imprisonment for a term exceeding one year” as that phrase is defined under 18
U.S.C. § 921(a)(20).2 Broadnax further argues that the district court’s jury
instructions were plainly erroneous.
II
Broadnax makes his constructive amendment argument for the first time
on appeal. “[T]his circuit applies plain error review to forfeited constructive
amendment arguments.” United States v. Daniels, 252 F.3d 411, 414 n.8 (5th
Cir. 2001). Under that standard, we will correct forfeited errors only if: (1) there
was an error; (2) the error was clear or obvious; and (3) the plain error affected
the substantial rights of the defendant. United States v. Griffin, 324 F.3d 330,
356 (5th Cir. 2003). If these three conditions are met, we may, in our discretion,
correct a forfeited error only if it “seriously affect[s] the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Olano, 507 U.S.
725, 736 (1993) (citation omitted).
A criminal defendant has a Fifth Amendment right to be “tried only on
charges presented in a grand jury indictment.” United States v. Chandler, 858
F.2d 254, 256 (5th Cir. 1988). Only a grand jury has the power to amend an
indictment. See id. “A jury charge constructively amends an indictment . . . if
it permits the jury ‘to convict the defendant upon a factual basis that effectively
modifies an essential element of the crime charged.’” United States v. Daniels,
252 F.3d 411, 413-14 (5th Cir. 2001) (citing Chandler, 858 F.2d at 257). The
accepted test is that a “constructive amendment occurs if the jury is permitted
to convict on an alternative basis permitted by the statute but not charged in the
indictment.” Id. at 414 (internal quotation marks and citation omitted).
2
Broadnax’s purports to raise an ineffective assistance of counsel claim. We do not
usually hear ineffective assistance claims on direct appeal, see United States v. Gulley, 526
F.3d 809, 821 (5th Cir. 2008), and Broadnax failed to fully brief the issue, see Justiss Oil Co.
v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir. 1996). Nothing herein forecloses
Broadnax from asserting an ineffective assistance claim in any future habeas proceeding.
4
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Section 922(g)(1) provides in relevant part that:
It shall be unlawful for any person . . . who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm.
18 U.S.C. § 922(g)(1). “Firearm” is a term of art. It means “any weapon . . .
which will or is designed to or may readily be converted to expel a projectile by
the action of an explosive[;] . . . the frame or receiver of any such weapon[;] . . .
any firearm muffler or firearm silencer[;] . . . or any destructive device.” 3 18
U.S.C. § 921(a)(3). “To establish a violation of § 922(g)(1), the government must
prove three elements beyond a reasonable doubt: (1) that the defendant
previously had been convicted of a felony; (2) that he possessed a firearm; and
(3) that the firearm traveled in or affected interstate commerce.” United States
v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).
The issue is whether the indictment is to be read as requiring proof beyond
a reasonable doubt that Broadnax possessed a “firearm,” as that term is defined
under § 921(a)(3), that was “in and affecting interstate commerce,” or whether
it requires proof that Broadnax possessed the specific firearm named, the “RG
Industries, Model RG 31, .38 caliber revolver, serial number 019420,” and that
it was “in and affecting interstate commerce.” According to Broadnax, the
indictment charged “that a specific completed weapon))the RG Industries,
Model RG 31, .38 caliber revolver, serial number 019420))had been possessed
in and affecting interstate commerce.” Broadnax contends that the jury
instructions worked a constructive amendment of the indictment because they
allowed the jury to convict on the basis that a component of the firearm,
specifically, the frame, was in interstate commerce, rather than requiring the
government to prove beyond a reasonable doubt that the specific, completed
3
The jury instructions were substantially identical to the language of § 921(a)(3).
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weapon was in or affecting interstate commerce. The government contends that
by pleading the weapon as a “firearm,” Broadnax was put on notice that the
government sought conviction by proof that he possessed a “firearm,” as that
term of art is defined, in and affecting interstate commerce.
We begin our analysis with the indictment itself. The indictment charged
that Broadnax “did knowingly possess, in and affecting interstate commerce, a
firearm, to wit: a RG Industries, Model RG 31, .38 caliber revolver, serial
number 019420.” Contrary to Broadnax’s argument, the indictment does not
charge “that a specific completed weapon))the RG Industries, Model RG 31, .38
caliber revolver, serial number 019420))had been possessed in and affecting
interstate commerce.” Rather, it charges simply that he possessed, “in and
affecting interstate commerce, a firearm.” The “in and affecting interstate
commerce” element is not specifically alleged as to the RG revolver, but more
broadly as to “a firearm.” Thus, the indictment requires proof of a nexus
between interstate commerce and a “firearm,” as that word is defined.
Accordingly, because the definition of “firearm” includes the frame, proof that
the frame was “in and affecting interstate commerce” would be sufficient for a
conviction under this indictment.4 See United States v. Gresham, 118 F.3d 258,
265 (5th Cir. 1997) (finding that the “jurisdictional nexus of § 922(g)(1) may be
satisfied by proof that the component part of the firearm traveled in interstate
commerce, rather than the firearm itself”); see also United States v. Munoz, 150
F.3d 401, 417 (5th Cir. 1998) (rejecting argument that indictment charging
possession of 12-gauge sawed-off shotgun in violation of § 922(g)(1) was
constructively amended where evidence showed shotgun was 20-gauge).
4
As discussed infra in Part III.A., we find that the evidence adduced at trial was
sufficient for a reasonable juror to find “beyond a reasonable doubt” that the entire firearm
itself, rather than just the frame, was “in and affecting interstate commerce.”
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Broadnax’s reliance on United States v. Chambers, 408 F.3d 237 (5th Cir.
2005), is misplaced. Chambers involved a § 922(g)(1) indictment for “knowingly
possess[ing] in and affecting interstate commerce ammunition, to wit: 104
rounds of .40 caliber S&W jacketed hollow-point ammunition, distributed by the
Houston Cartridge Company, which had been transported in interstate
commerce . . . .” Id. at 240. The evidence did not show that any of the completed
rounds identified in the indictment had ever moved in interstate commerce,
although there was evidence that some of the ammunition components had
moved in interstate commerce. Id. at 239. The trial court instructed the jury to
convict if it found that the defendant possessed ammunition, defined as
“ammunition or cartridge cases, primers, bullets or propellant powders designed
for use in any firearm,” that had, at some time, been in and affecting interstate
commerce. Id. The government, relying on this instruction, argued in closing
that the “in and effecting commerce element” could be proven by evidence that
“the components, before they were assembled, crossed state lines.” Id. The jury
convicted. On appeal, Chambers argued that the indictment was constructively
amended by instructions which allowed conviction if component parts of the
ammunition, as opposed to the specific rounds identified, had been transported
in interstate commerce. This court agreed.
The Chambers indictment differs in a critical way from the indictment
charging Broadnax. It charged that the 104 specific, completed rounds of “.40
caliber S&W jacketed hollow-point ammunition . . . distributed by the Houston
Cartridge Company . . . had been transported in interstate commerce.” Id. at 240
(emphasis added). Thus, because the indictment charged that those specific
rounds had been transported in interstate commerce, the government was
required to prove that fact and could not satisfy its burden by proving some
other ammunition or component that could have been charged under § 922(g)(1)
had been transported in interstate commerce. Broadnax’s indictment does not
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allege that the “RG Industries, Model RG 31, .38 caliber revolver, serial number
019420,” itself, was “in and affecting interstate commerce” or had been
transported in commerce. Such an indictment would be analogous to the
language of the Chambers indictment and would require proof that the specific
weapon identified was transported in interstate commerce. But that is not the
indictment that we have before us. Broadnax’s indictment permits conviction
if a firearm, as statutorily defined, and even if not the completed weapon
described in the indictment, affects interstate commerce, and therefore forecloses
reliance on Chambers.
For similar reasons, we find Broadnax’s reliance on United States v.
Doucet, 994 F.2d 169 (5th Cir. 1993), inapposite. Doucet involved a challenge to
a conviction under 26 U.S.C. § 5861 for unlawful possession of an unregistered
firearm modified to fire as a machine gun. Id. at 170. The trial court in Doucet
instructed that a “machine gun” included “any combination of parts from which
a machine gun can be assembled.” Id. This was an impermissible constructive
amendment because the indictment charged possession of an unregistered
assembled machine gun and proof of possession of the parts would not have been
sufficient to convict under the indictment. Doucet does not implicate § 922(g)(1)
or Broadnax’s argument that the government should have been required to prove
that the specific, completed RG revolver was “in and affecting interstate
commerce.”
No constructive amendment occurred here because neither the evidence
at trial nor the jury instructions implied that Broadnax could be convicted of
anything other than being a felon in possession of a firearm that had been in and
affecting interstate commerce in violation of § 922(g)(1).
III
Broadnax contends that the evidence was insufficient to prove two
elements of the offense: (1) that the specific weapon identified in the indictment
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was “in and affecting interstate commerce,” and (2) that Broadnax was a
convicted of a qualifying felony under § 921(a)(20). Because Broadnax moved for
a judgment of acquittal under F ED. R. C RIM. P. 29 at the close of the
government’s case-in-chief, and again at the conclusion of all evidence, this court
reviews his sufficiency of the evidence claim de novo. United States v. Harris,
420 F.3d 467, 470 (5th Cir. 2005). We review a claim of insufficient evidence to
determine if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Ekanem, 555 F.3d 172,
174 (5th Cir. 2009) (citation omitted). “In applying this standard, we view the
evidence in the light most favorable to the prosecution and accept all reasonable
inferences that tend to support the verdict.” Id. (citation omitted).
A
To prove a violation of § 922(g)(1), the government must prove beyond a
reasonable doubt that the firearm traveled in or affected interstate commerce.
Guidry, 406 F.3d at 318. To establish the interstate nexus, the government
offered testimony of ATF Agent Meade. Meade testified that the firearm,
bearing serial number 019420, was manufactured by RG Industries, located in
Miami, Florida. He testified that Miami was “where this firearm would have
been assembled.” Meade also testified that the “frame was manufactured in
Miami, Florida.” Finally, he testified that he did not know how the gun
“particularly got to Texas in this instance, but it would have been bought and
sold in commerce.”
Broadnax argues that this testimony conflates the “gun” or “firearm” and
the “frame” such that it is unclear whether Agent Meade’s testimony asserts that
the gun itself, the RG revolver bearing serial number 019420, was manufactured
in Florida or whether only the “frame” was.5 Essentially, Broadnax reargues his
5
In a footnote, Broadnax relies on Jackson v. FIE Corp., No, 97-31090, 1998 WL 723838
(5th Cir. Oct. 5, 1998), for the proposition that this court previously “acknowledged that the
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constructive amendment claim that the government showed only that the frame
of the RG revolver (not the entire revolver) was manufactured in Miami, Florida
and was, therefore, in and affecting interstate commerce. As discussed above,
this is a distinction without a difference. See, e.g., Munoz, 150 F.3d at 417
(noting that § 922(g)(1) “just requires the defendant to possess a ‘firearm’ to
violate it”); United States v. Hamilton, 992 F.2d 1126, 1129-30 (10th Cir. 1993)
(indicating that the type of firearm represents a non-essential element of
§ 922(g)(1)). The indictment charged that Broadnax was a felon who “possessed,
in and affecting interstate commerce, a firearm.” The frame counts as a
“firearm” under § 921(a)(3). Thus, evidence that the frame of the firearm was
“in and affecting interstate commerce” because it was manufactured in Florida
and ended up in Texas is factually and legally sufficient.
Moreover, considering the entirety of this testimony in the light most
favorable to the prosecution, a rational trier of fact could have found beyond a
reasonable doubt that the RG revolver itself was “in and affecting interstate
commerce.” Broadnax is correct that Meade testified that the frame was
manufactured in Florida. But Meade also testified that the gun, “a .38 caliber
revolver . . . serial number . . . 019420” made by RG Industries, “would have been
assembled” in Miami. Thus, a rational juror could have concluded from this
testimony not only that the frame was manufactured by RG Industries in
‘frame’ of a gun is a distinct component of the complete gun, and has rejected the assertion
that the manufacturer of the ‘frame’ must be assumed to be the manufacturer of the complete
gun.” Jackson v. FIE Corp. was a products liability suit alleging that a firearm that
accidentally discharged was unreasaonbly dangerous. The manufacturer of the gun’s frame
won summary judgment because there was no evidence that the frame was unreasaonbly
dangerous and no evidence that the frame manufacturer also manufactured the firing
mechanism, which was the component of the gun alleged to be unreasaonbly dangerous. Id.
at *2. Our statement that “[a] manufacturer cannot be liable in a product liability claim where
it shows that it did not manufacture or install the component of the product alleged to be
defective,” simply has no bearing on the issues in this case. Id. Moreover, there is no record
evidence, here, that the frame’s manufacturer was not the manufacturer of the entire,
completed gun.
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Florida, but that this specific revolver was assembled in Florida and later ended
up in Texas. This evidence is sufficient to support the conviction.
B
Section 922(g)(1) applies to “any person . . . who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one year”
and, thus, one of the elements of § 922(g)(1) that the government must prove is
that Broadnax was previously convicted of such a crime. See Guidry, 406 F.3d
at 318. The term “crime punishable by imprisonment for a term exceeding one
year” does not include:
any Federal or State offenses pertaining to antitrust violations,
unfair trade practices, restraints of trade, or other similar offenses
relating to the regulation of business practices, or . . . any State
offense classified by the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years or less.
18 U.S.C. § 921(a)(20). The only evidence offered at trial regarding Broadnax’s
prior criminal history was the stipulation agreed to by the parties: “Prior to
February 5, 2007, the defendant, Corey Jerome Broadnax, had been convicted
in a court for a crime punishable by imprisonment for a term exceeding one year,
that is, a felony offense.” Broadnax contends his stipulation was merely one of
fact, not that the government had established the required prior felony status
as a matter of law. Broadnax further asserts that because the definition of the
phrase “crime punishable by imprisonment for a term exceeding one year”
excludes certain crimes, the stipulation, without more, did not prove beyond a
reasonable doubt that Broadnax was convicted of a qualifying crime under the
definition found in § 921(a)(20). The government contends that whether
Broadnax’s prior felony qualifies under § 921(a)(20)’s definition is a legal
question for the judge, not the jury.
Our precedent is clear that “[t]he question whether a felony conviction may
serve as a predicate offense for a prosecution for being a felon in possession of
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a firearm pursuant to § 922(g)(1) is ‘purely a legal one.’”6 United States v.
Daugherty, 264 F.3d 513, 514 (5th Cir. 2001) (citation omitted); United States v.
Thomas, 991 F.2d 206, 209 (5th Cir. 1993); cf. United States v. Bethurum, 343
F.3d 712, (5th Cir. 2003) (holding that the essential elements of a § 922(g)(9)
violation are set forth in § 922(g)(9) itself and § 921(a)(33) is purely a legal
definition of the qualifying predicate offense). Accordingly, it was for the district
court, not the jury, to determine whether any of Broadnax’s prior convictions
6
Broadnax directs us to two Supreme Court opinions, Old Chief v. United States, 519
U.S. 172 (1997) and United States v. Hayes, 129 S. Ct. 1079 (2009), which he contends dictate
that the definitional sections of § 921(a) are part of the essential elements of “felon in
possession” crimes under § 922(g).
The Old Chief footnote, on which Broadnax relies heavily, is dicta and inapposite. The
Supreme Court’s discussion focused on a jury instruction, which paraphrased the definition
in § 921(a)(20) in such a way that the jury would have been confused whether Old Chief’s prior
conviction fell within the definition. That brief discussion simply does not stand for the
proposition that a jury must find that a prior conviction satisfies § 921(a)(20) as an essential
element of a § 922(g)(1) violation.
Hayes is likewise inapposite. The question before the Court was not whether the
definitions in § 921(a) are part of the essential elements of § 922(g) crimes, but rather, whether
a domestic relationship must be an element of the predicate offense itself under
§ 921(a)(33)(A). See Hayes, 129 S. Ct. at 1082.
The view that whether a conviction falls within a § 921(a)(20) definition is a legal issue
is confirmed by the many holdings of our sister circuits. See, e.g., United States v. Stanko, 491
F.3d 408, 412-13 (8th Cir. 2007) (holding that “whether a conviction falls within the exclusions
defined in § 921(a)(20)(A) is a question of law for the court”); United States v. Bartelho, 71 F.3d
436, 439-40 (1st Cir. 1995) (holding that § 921(a)(20) sets forth a purely legal definition, not
an essential element of what constitutes a conviction for a predicate offense under § 922(g));
United States v. Jackson, 57 F.3d 1012, 1016-17 (11th Cir. 1995) (same); United States v.
Flower, 29 F.3d 530, 534 (10th Cir. 1994) (same); United States v. Clark, 993 F.2d 402, 406
(4th Cir. 1993) (same). Moreover, the case law demonstrates that whether a prior conviction
is excluded under § 921(a)(20) is often fraught with legal complexities that require parsing not
only § 921(a)(2), but also state and federal statutes that define crimes. See, e.g., Stanko, 491
F.3d at 412-19 (analyzing whether § 921(a)(20) excludes all business-related offenses and
whether a violation of the Federal Meat Inspection Act is an excluded § 921(a)(20) business-
related violation); United States v. Thomas, 991 F.2d 206, 208 (5th Cir. 1993) (determining
whether a conviction under a Texas law that does not proscribe possession of a firearm acts
to “restore” civil rights such that the conviction does not meet the definition under
§ 921(a)(20)). These legal questions are uniquely in the court’s ken.
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qualified as a “crime punishable by imprisonment for a term exceeding one year”
as that phrase is defined in § 921(a)(20).
The record reveals no explicit finding by the district court that Broadnax
was convicted of a prior felony that was not excluded under the definition found
in § 921(a)(20). At a pretrial conference, the only discussion of the stipulation
was Broadnax’s attorney’s statement that there was a “[s]tipulation to Mr.
Broadnax’s [sic] having a prior felony.” The district court neither reviewed the
stipulation nor ruled that the stipulation was legally sufficient under
§ 921(a)(20) when it was read to the jury. Nor did the district court instruct the
jury that the stipulation satisfied the predicate felony offense element of
§ 922(g)(1). But the district court implicitly found the stipulation legally
sufficient to satisfy the definition of a “crime punishable by imprisonment for a
term exceeding one year” when it admitted the stipulation as evidence.7 The
district court also found the guilty verdict was supported by proof beyond a
7
Seizing on this court’s statement in Bethurum, that “the trial judge rather than the
jury should determine whether a particular conviction is admissible as relevant evidence of a
misdemeanor crime of domestic violence” for purposes of a conviction under § 922(g)(9), see 343
F.3d at 717 (emphasis added), Broadnax argues that our jurisprudence is properly read as
answering the question of who determines admissibility, not whether the definitions found in
§ 921(a) are legal questions for the court rather than elements of the offense to be found by the
jury. To be clear, Bethurum explicitly faced, and answered, that question. We held that the
“essential elements of a violation of § 922(g)(9) are set forth in § 922(g)(9) itself; § 921(a)(33)
simply provides a legal definition.” 343 F.3d at 717. We took the same position with respect
to the interaction between § 921(a)(20) and § 922(g)(1). Daugherty, 264 F.3d at 514. Of course,
whether a prior conviction satisfies the legal definition of a prior criminal offense under
§ 921(a) has implications for admissibility. A prior conviction will only be admissible if it
satisfies the legal definition under § 921(a) because any conviction that did not satisfy the
relevant definition of a predicate criminal offense would be irrelevant to determining a
violation under § 922(g), and therefore, inadmissable. FED . R. EVID . 402 (“Evidence which is
not relevant is not admissible.”). The judge must decide whether a particular conviction is
admissible as relevant evidence, “even though the trial judge’s ultimate decision to admit or
not to admit a prior conviction may require a factual showing.” Bethurum, 343 F.3d at 717
(emphasis added). The jury is only required to find facts as they relate to essential elements
of the crime, but is not required to assess facts that underlie a purely legal question.
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reasonable doubt as to all elements when it rejected Broadnax’s F ED. R. C IV. P.
29 motion for acquittal, entered the jury’s verdict, and sentenced Broadnax.
The only question that we must decide is whether the stipulation is, in
fact, legally sufficient. Our review is plenary. Daugherty, 264 F.3d at 514.
Broadnax stipulated that he had been convicted of “a crime punishable by
imprisonment for a term exceeding one year.” To accept Broadnax’s argument
that the stipulation does not satisfy the predicate felony offense element of
§ 922(g)(1), we would have to ignore that the language of the stipulation is
identical to the language of § 922(g)(1). This we will not do. Where a
defendant’s stipulation to a prior felony offense uses the very language of the
statute that defines that element of the offense, he has stipulated that the
element is satisfied as a matter of fact and law. See, e.g., United States v. Clark,
184 F.3d 858, 865 (D.C. Cir. 1999) (noting that the predicate offense element of
a § 922(g)(1) violation was “proven by a stipulation that mirrored the words of
the statute”).
IV
Broadnax’s final argument is that the district court erred in not giving the
jury an instruction as to the definition under § 921(a)(20) of the phrase “crime
punishable by imprisonment for a term in excess of one year,” and in instructing
the jury that the term “firearm” includes the “frame or receiver of any such
weapon, or any firearm muffler or firearm silencer, or destructive device.”
Broadnax did not object to these instructions at trial; indeed, the parties jointly
submitted agreed jury instructions. The Government contends that Broadnax
has “arguably” waived any argument that the instructions were erroneous.
Broadnax contends that his agreement to the instructions is a mere forfeiture
and should be reviewed for plain error. We have found no case in this circuit
stating that agreement to jury instructions constitutes a waiver of any error in
the instructions. However, other circuits have found that such agreement
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Case: 08-10494 Document: 00511057331 Page: 15 Date Filed: 03/19/2010
No. 08-10494
constitutes a forfeiture, reviewed for plain error, rather than a waiver. See, e.g.,
United States v. Longstreet, 567 F.3d 911, 921 (7th Cir. 2009); Gov’t of V.I. v.
Rosa, 399 F.3d 283, 291–93 (3rd Cir. 2005); United States v. Perez, 116 F.3d 840,
845–46 (9th Cir. 1997) (en banc).
Whether we consider Broadnax’s argument about the jury instructions
waived or review for plain error, he cannot prevail. We find plain error only if
the district court committed an error, that error is “plain,” and the error “affects
substantial rights.” United States v. Betancourt, 586 F.3d 303, 306 (5th Cir.
2009) (citations omitted). There was no error, plain or otherwise, in the jury
instructions. Because the definition under § 921(a)(20) of the phrase “crime
punishable by imprisonment for a term in excess of one year,” is not an element
of a violation of § 922(g)(1), the district court committed no error in not
instructing the jury on that legal definition. See Stanko, 491 F.3d at 413 (“We
also necessarily conclude that Stanko’s Sixth Amendment right to a trial by jury
was not violated by the district court’s refusal to instruct the jury on the §
921(a)(20)(A) exclusion.”). With respect to the definition of “firearm,” Broadnax’s
contention is not that the definition was incorrect (the definition was taken
verbatim from the statute), but that including the word “frame” caused a
constructive amendment of the indictment. We have already disposed of this
argument. There was no constructive amendment and it was not error to
instruct the jury as to the definition of the word “firearm,” as the jury was
required to find that Broadnax possessed a “firearm” and that the “firearm” was
“in and affecting interstate commerce.”
V
For the foregoing reasons, we AFFIRM.
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