UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 93-7734
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THE UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DOUGLAS RAY STEVENS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(November 3, 1994)
Before JOHNSON, HIGGINBOTHAM and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Douglas Ray Stevens appeals his conviction for possession of
a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). We
vacate and remand.
I.
In late 1992, Douglas Ray Stevens, then known as Douglas Ray
Williams, was under investigation by the Texas Department of Public
Safety for illegal gaming operations. As part of this
investigation, law enforcement officers obtained a warrant
authorizing them to search Stevens' home for evidence of
bookmaking. To execute this warrant, a team of state and local
officers borrowed a flower delivery truck and came to Stevens' door
carrying poinsettias. When Stevens and his wife answered the door,
the officers entered peacefully through the open door, informed
Stevens that they were police officers and that they intended to
search his house, which they proceeded to do.
During this search, Officer Raul Tovar found two handguns,
both Smith & Wesson .38 caliber revolvers, one chrome and one
blued. Tovar found the chrome revolver in a locked briefcase that
Stevens opened for him. This handgun was unloaded and bore the
serial number J555813. Stevens told Officer Tovar that he had been
given this gun to settle a gambling debt, so Tovar seized the
chrome revolver as evidence of Stevens' gambling operation.
Officer Tovar discovered the blued revolver inside a shoe box in a
closet. The blued handgun was loaded and stamped "CCPD,"
signifying that at one time it had belonged to the Corpus Christi
Police Department. The officers had no reason to connect the blued
CCPD revolver to possible gambling violations so they photographed
this handgun but did not seize it.
Some time later, a fire occurred in the Stevens home and the
blued CCPD revolver was destroyed. While investigating this fire,
the Texas officers discovered Stevens' true identity and learned
that he had a prior felony conviction. Stevens was then charged
with knowing possession of the chrome revolver bearing serial
number J555813. He was not charged with possession of the blued
CCPD revolver.
Several references were made to the blued CCPD revolver during
the trial. Officer Tovar testified on cross-examination during the
Government's case that he had found another handgun in a closet,
that he was not sure who owned it and that it was not seized
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because it was not evidence of gambling.
The defense began its case by calling Stevens himself.
Stevens testified that the chrome revolver and the briefcase in
which it was stored belonged to his wife. He explained that they
had only been married for two months at the time of the search and
that he was not aware that among his wife's belongings was a
briefcase containing a revolver. The Government asked Stevens on
cross-examination whether he knew about the blued CCPD revolver in
the closet, and whether it belonged to him. Stevens denied both
knowledge and ownership of this gun as well.
Stevens' wife, Martha, also testified. She affirmed that she
was indeed the owner of both the chrome revolver and the briefcase,
and that her husband had not known of them. The Government, on
cross-examination, attempted to impeach Martha Stevens' testimony
that she owned the chrome revolver. The prosecution showed her the
picture of the blued CCPD revolver and asked her if this was the
gun that was in the briefcase. She responded that she was not
familiar with guns but that the gun in the photograph might be
hers. The Government later asked her a series of questions about
who owned any other guns found in the house, and specifically who
owned the gun found in the shoe box in a closet. She replied that
she did not own any other guns, and that she had not known that any
other guns had been found.
After the defense rested, the Government recalled Officer
Tovar to give rebuttal testimony. Tovar identified the blued
revolver in the photograph as "a service revolver, a Smith &
Wesson, .38 caliber." He stated that he had found this revolver in
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Stevens' house, in a box in the hallway, and that he had not kept
it as evidence. The Government then offered the photograph of the
blued revolver into evidence, causing the following exchange:
GOVERNMENT: Government would offer Exhibit 9 --
DEFENSE: No objection.
GOVERNMENT: -- into evidence.
THE COURT: It's admitted.
GOVERNMENT: No further questions.
THE COURT: Not only has it apparently not been admitted,
but the defendant is not on trial for that
weapon. You may continue.
Counsel's closing arguments focused almost entirely on the
chrome revolver the officers found in the briefcase and whether
Stevens or his wife owned that handgun. Counsel made only one
reference to the blued CCPD revolver. The prosecutor explained
that "[t]he only reason the Government has that in evidence is to
the credibility of Mrs. Stevens."
After deliberating for several hours, the jury sent the judge
a note that read:
Can we accept the picture of the CCPD gun as evidence of
possession. Why didn't the police department confiscate both
guns?
The judge proposed to counsel that he reply as follows:
With respect to your first question, you are to consider all
the evidence in the record on the issues that have been
presented. Whether and to what extent you accept that
evidence as proof of the offense alleged is your choice.
With respect to your second question, I am not allowed to
answer. If the reason was stated by a witness, it is in
evidence. If it was not stated, then the reason is not in
evidence. I cannot furnish testimony to you not already in
evidence.
Stevens' attorney objected to the first paragraph of the
answer, arguing that the jury was not asking whether they could use
the photograph of the blued CCPD revolver to impeach Martha
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Stevens' testimony, but whether they could use the photograph as
evidence that Stevens had possessed the blued CCPD gun, and convict
him for that possession. The judge disagreed and, after a lengthy
discussion, decided to send his response as originally drafted.
Shortly after receiving this reply, the jury found Stevens guilty.
II. Stevens argues that the district
court erred by not responding to the jury's note with an
instruction that (l) the photograph was admitted for the limited
purpose of assessing Martha Stevens' credibility and (2) Stevens
could not be convicted for possessing the blued revolver. He
contends that, because jury misunderstood the role of the blued
CCPD revolver in this case, he was convicted of possessing the
blued CCPD revolver, rather than the chrome revolver charged in the
indictment.
When a deliberating jury expresses confusion and difficulty
over an issue submitted to it, the trial court's task is to clear
that confusion away with "concrete accuracy." United States v.
Carter, 491 F.2d 625, 634 (5th Cir. 1974); Bollenbach v. United
States, 326 U.S. 607, 613 (1946). A trial judge, of course, enjoys
wide latitude in deciding how to respond to such questions. See
United States v. Duvall, 846 F.2d 966, 977 (5th Cir. 1988). When
evaluating the adequacy of supplemental jury instructions, we ask
whether the court's answer was reasonably responsive to the jury's
question and whether the original and supplemental instructions as
a whole allowed the jury to understand the issue presented to it.
United States v. Natale, 764 F.2d 1042, 1046 (5th Cir. 1985). In
this case, the court's answer was not responsive to the jury's
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question. Also, this answer did not make it clear to this jury
that it could not convict Stevens for possessing the blued CCPD
revolver.
As indicated above, several references were made during the
trial to the blued CCPD revolver. The district court, in admitting
the photographs of the blued revolver, made a very brief,
unsolicited statement: "not only has it apparently not been
admitted, but the defendant is not on trial for that weapon. You
may continue." Defense counsel never requested a more complete
limiting instruction defining the limited purpose of this evidence
and we cannot fault the district court for failing to give one
spontaneously. However, the absence of such an instruction lends
credence to Stevens' argument that the district court
misinterpreted the jury's question.
In light of the record, we are persuaded that the most obvious
question on which the jury sought clarification was whether it
could use the photograph of the blued revolver as evidence that
Stevens had possessed that firearm and convict Stevens based on
that possession. This is the most straightforward meaning of the
first question standing alone: "Can we accept the picture of the
CCPD gun as evidence of possession." The second question: "Why
didn't the police department confiscate both guns?" lends support
to this interpretation. If the jury thought Stevens was equally
accountable for the possession of either handgun, they would not
understand why the police allowed him to keep one and not the
other.
We conclude therefore that the judge's answer to the jury's
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question was not responsive and did not clear away the confusion
and difficulty the jury had in deciding how to use the photograph
of the blued CCPD revolver. Because this confusion may well have
caused the jury to find Stevens guilty of an offense not charged in
the indictment, we must vacate this conviction and remand the case
to the district court for further proceedings.1
VACATED and REMANDED.2
1
Stevens also argues that the Texas officers violated 18
U.S.C. § 3109 (knock-and-announce rule) by entering his home
through the flower delivery scheme. Under long established Fifth
Circuit precedent, this argument must fail. See, e.g., United
States v. DeFeis, 530 F.2d 14, 15 (5th Cir.), cert. denied, 429
U.S. 830 (1976).
2
Because we make no finding as to the sufficiency of the
evidence in this case, our decision does not raise a double
jeopardy bar to Stevens' retrial. See United States v. Miller,
952 F.2d 866, 870 (5th Cir.), cert. denied, 112 S.Ct. 3029
(1992); United States v. Tateo, 377 U.S. 463, 365 (1964).
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