United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 2, 2007 Decided October 23, 2007
No. 06-3053
UNITED STATES OF AMERICA,
APPELLEE
v.
ANDRE R. BROWN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00144-01)
Ketanji Brown Jackson, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Daria J. Zane, Assistant U.S. Attorney, argued the cause for
appellee. On the brief were Jeffrey A. Taylor, U.S. Attorney,
and Roy W. McLeese, III, Lisa H. Schertler, and John P. Gidez,
Assistant U.S. Attorneys.
Before: SENTELLE and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SENTELLE.
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SENTELLE, Circuit Judge: Andre Brown appeals his
conviction for possession of ammunition by a convicted felon in
violation of 18 U.S.C. § 922(g)(1), arguing that the district court
erred in allowing the jury to find him guilty of possessing only
ammunition when the grand jury had indicted him for
possession of both a firearm and the ammunition found inside.
For the following reasons, we reject Brown’s arguments and
affirm his conviction.
I.
On April 1, 2005, Metropolitan Police Officers conducted
a “buy-bust” undercover drug investigation. Around 5:35 p.m.,
an undercover officer who had just completed a buy-bust with
a different suspect witnessed Brown, who had just entered the
parking lot, toss a plastic bag appearing to contain plant leaves
behind a parked car and then get into the car’s driver’s seat. The
undercover officer had already called in the arrest team to detain
other suspects, but added instructions to stop Brown and recover
the item he had just discarded behind his vehicle.
When arresting officers pulled into the parking lot in
marked police cruisers, one cruiser parked immediately in front
of Brown and his vehicle. Officer Robert Munn got out of the
passenger door of that cruiser and walked directly towards
Brown’s vehicle. As Munn approached, he saw Brown reach for
his waistband area, then reach over to open and close his glove
box. In short order, Munn and the other officers removed
Brown from the car, recovered a bag of marijuana from behind
the vehicle and searched its interior. Upon opening the glove
box, the officers found a loaded Hi-Point .45 caliber pistol.
Officer Munn’s initial affidavit in support of the sworn criminal
complaint against Brown described the pistol as a “Hi-Point
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9mm” rather than as a .45 caliber semi-automatic pistol.
By the time the case was presented to the grand jury, this
discrepancy in the pistol’s description was recognized and
corrected. The grand jury returned a two count indictment
against Brown charging him with possession of marijuana and
with unlawfully possessing a firearm, “that is, a Hi-Point .45
caliber semi-automatic pistol, and did unlawfully and knowingly
receive and possess ammunition, that is, .45 caliber
ammunition” in violation of 18 U.S.C. § 922(g)(1) due to
Brown’s prior felony conviction.
When confronted at a pre-trial suppression hearing with the
discrepancy between his charging document and the wording of
the indictment, Officer Munn, rather than simply admitting he
made a mistake on his charging document, insisted that he had
only meant that the pistol appeared to be a 9mm due to its style,
and then implied that the pistol in question may have been
capable of shooting rounds of various calibers. Based on this
discrepancy over the pistol’s caliber, Brown moved to dismiss
the indictment’s firearm possession count prior to trial. After
the court denied that motion, Brown made Munn’s discrepancy
the centerpiece of his defense at trial.
Prior to trial, the government submitted the standard “Red
Book” jury instruction on the § 922(g)(1) count. The wording
of this instruction only addressed possession of a firearm—not
ammunition. Brown proposed instructions which would have
required the government to show that he knowingly possessed
both the firearm and the ammunition. The district court decided
to use the “Red Book” instruction, despite its silence on the
ammunition issue. Before sending the jury in for deliberations,
however, the court recognized that the instruction was “a little
misleading because [it] doesn’t say anything about the
ammunition at all, just the firearm, and they can find him guilty
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of possession of ammunition and not the firearm, so it’s
either/or. I should tell them that.”
After asking for any objections from counsel and hearing
none, the court orally instructed the jury that it could find Brown
guilty on the § 922(g)(1) count based on finding that he
knowingly possessed either the firearm or the ammunition even
though the indictment “charges possession of a firearm and
ammunition.” After giving the new instruction, the court
conferred with counsel on the appropriate wording for the
written instructions. The government requested a disjunctive
instruction, with language that the defendant could be found
guilty for possessing “ammunition or firearm or both,” and the
court proposed adopting this language. Brown’s counsel
objected to this disjunctive written instruction, arguing that the
indictment said “and” and that the evidence the government had
presented only supported a conjunctive wording. After
consulting the statutory language, which reads “any firearm or
ammunition,” the court decided that the disjunctive instruction
was appropriate.
The next day, while the jury was deliberating, the jury
foreperson sent out a note asking for clarification of the jury
instruction, and asked whether the jury had to find both
possession of the ammunition and the firearm. The court
proposed responding with a simple “no,” though the government
asked that the court use this opportunity to clarify the disjunctive
nature of the instruction. Brown’s counsel reiterated her
position that the requirement should be phrased in the
conjunctive “and” because that is what the indictment read, and
that giving a disjunctive instruction now constituted a variance
from the indictment. The court asked her if she had any
authority to support her position that the court’s instruction had
created a fatal variance between the indictment and the jury
instruction, but she had none. The government argued that the
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“variance” was permissible because the government had put on
evidence supporting a finding on the ammunition issue, and that,
in any case, the statute’s language trumped the indictment’s.
Soon thereafter, the jury sent a note stating that it had
reached a verdict, but when it returned to the courtroom to
render the verdict, the foreperson gave the court an incomplete
verdict form and made a confusing statement about being
“locked on the firearm.” The court instructed the jury to
continue with deliberations, and soon afterwards the jury
returned a verdict that remained locked on the possession of a
firearm charge but was unanimous on the questions of
possession of ammunition and drugs. The jury foreperson
subsequently announced that the jury found Brown guilty of
possessing a firearm or ammunition by a felon, but acquitted
him on the drug possession charge.
Brown made a post-trial motion for acquittal or,
alternatively, for a new trial, making some of the same
arguments now presented to this Court for review. The district
court denied Brown’s motions and sentenced him to thirty-three
months imprisonment followed by two years of supervised
release. This appeal timely followed.
II.
Brown advances three arguments in support of his
contention that the district court issued an erroneous jury
instruction at his trial. We consider each below.
A. Instruction Unsupported by Evidence Presented
Brown’s first argument is that the government’s evidence
did not support the district court’s jury instruction, as all
evidence presented concerned a loaded weapon and this
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precluded a finding that Brown possessed ammunition separate
from a weapon. While Brown does not argue that a jury verdict
may be struck down for being inconsistent, he argues that a trial
court must take steps to avoid such an inconsistent verdict.
Brown cites Joy v. Bell Helicopter Textron, 999 F.2d 549, 556
(D.C. Cir. 1993), for the proposition that a trial judge’s
instructions to jurors must be “on the dictates of the law as made
applicable by the evidence presented in the particular case.” As
additional support for this argument, Brown cites Bartak v. Bell-
Galyardt & Wells, Inc., 629 F.2d 523, 528 (8th Cir. 1980), for
the proposition that it is reversible error to submit to the jury an
issue as to which there is no evidence; and United States v.
Payne, 805 F.2d 1062, 1067 (D.C. Cir. 1986), for the related
proposition that a court does not err by refusing to give a lesser
included offense instruction when the evidence provides no
rational basis for convicting defendant of the lesser offense.
Brown argues that since the government’s evidence all pointed
to a loaded gun, the district court erred by failing to inform the
jury that it could only find Brown guilty of possessing a firearm
and ammunition because the evidence presented by the
government did not support a separate finding of guilt on the
possession of ammunition alone.
We are not persuaded by this argument. True, it is proper
for a trial court to refuse to submit to the jury a count on which
the government has failed to present any evidence that would
allow a rational juror to find guilt beyond a reasonable doubt,
see, e.g., Bartak, 629 F.2d at 528, but this is not such a case.
Brown challenges neither the admissibility of the .45 caliber
ammunition the government entered into evidence nor the
testimony at trial linking that ammunition to him. Since this
evidence supported a guilty finding on the charge of possession
of ammunition, the district court properly instructed the jury that
it could conclude that Brown possessed ammunition in violation
of 18 U.S.C. § 922(g)(1).
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As Brown concedes, the fact that a jury comes to a factually
inconsistent verdict is not, by itself, grounds for reversal. See
Dunn v. United States, 284 U.S. 390, 393 (1932); United States
v. Campbell, 684 F.2d 141, 151-52 (D.C. Cir. 1982) (addressing
compromise verdicts). In Dunn, the Supreme Court “held that
a criminal defendant convicted by a jury on one count could not
attack that conviction because it was inconsistent with the jury’s
verdict of acquittal on another count.” United States v. Powell,
469 U.S. 57, 58 (1984). This is so because inconsistent verdicts
may well be nothing more than “a demonstration of the jury’s
leniency.” Id. at 61. This rationale is equally applicable where
a single count alleges two methods of committing a violation as
where the two methods are separated into two separate counts.
In any event, in the present case, the alleged inconsistency is not
completely unexplainable. The caliber of the pistol seized from
Brown’s vehicle was in dispute during the trial, and some jurors
may have retained doubt over whether the pistol entered into
evidence was the same one seized from Brown’s vehicle. All
jurors determined beyond reasonable doubt that the ammunition
admitted at trial was Brown’s. Given that the statute and
indictment only required the jury to find that Brown possessed
the ammunition in order to find him guilty of the crime, it was
permissible for the jury to decide to stop deliberating at that
point and render its verdict. Thus, we see no reason to disturb
the conviction on this ground.
B. Constructive Amendment
Brown’s second argument is that, by instructing the jury
that it could find him guilty of either possessing the weapon “or”
the ammunition, the district court constructively amended the
indictment. Brown cites Stirone v. United States, 361 U.S. 212,
215-16 (1960), for the proposition that “after an indictment has
been returned[,] its charges may not be broadened through
amendment except by the grand jury itself.” Since the
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indictment charged Brown with possession of a firearm “and”
ammunition, he urges that changing the jury instruction to allow
the jury to find him guilty of possessing either the firearm or the
ammunition broadened his potential basis of criminal liability
beyond the bounds of the original indictment.
Brown cites two Eleventh Circuit cases as support for his
argument. In United States v. Narog, 372 F.3d 1243, 1249-50
(11th Cir. 2004), the district court responded to a jury question
about the requirements of finding a defendant guilty by relying
on the text of the criminal code rather than the specific charge
found in the indictment; the resulting conviction was
subsequently reversed by the Eleventh Circuit. That circuit
reasoned that the government had charged a subset of the
statutory crime, and that it must be held to prove what it had
charged. Id. Similarly, in United States v. Weissman, 899 F.2d
1111, 1116 (11th Cir. 1990), the same court concluded that a
district court’s jury instructions “altered an essential element of
the crime charged” in light of the government’s evidence in the
case.
These two cases are inapposite, however, as both merely
stand for the proposition that a defendant may not be found
guilty of a specific crime for which he was not indicted. In
Narog, the government had specifically charged the defendant
with possession and distribution of pseudoephedrine knowing
that it would be used to manufacture methamphetamine. Narog,
372 F.3d at 1246. There, the court responded to a jury question
on the mens rea requirement by stating simply that the
government needed to prove “that the pseudoephedrine would
be used to manufacture some controlled substance,” rather than
instructing that the jury could find guilt only if it found that the
defendant knew the pseudoephedrine would be used to
manufacture methamphetamine as the indictment specified. Id.
at 1247. Similarly, in Weissman, the district court supplemented
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its jury instruction in a way that permitted the jury to find the
defendant guilty of a RICO conspiracy other than the one
specified in the indictment. Weissman, 899 F.2d at 1112. The
Weissman indictment had specifically charged the defendants
with a conspiracy committed while they were associated with an
enterprise defined as coextensive with a certain crime family.
Id. During jury deliberations, the jury asked the court whether
the crime family and the term “enterprise” must be construed as
one and the same. The district court responded that the jury did
not need to find that the defendants were associated with the
particular crime family, only with an “enterprise” as the court
had earlier defined that term. Id. at 1113. The Eleventh Circuit
found that this created the possibility “that appellants were
convicted on grounds not charged in the indictment.” Id. at
1112.
Unlike those two cases in which the district courts issued
jury instructions which could have permitted a guilty finding on
an unindicted charge, Brown was specifically indicted for both
possession of a Hi-Point .45 caliber semi-automatic pistol and
for possession of .45 caliber ammunition. Therefore, the court’s
instruction that they could find Brown guilty for possession of
either injected no possibility of conviction of an offense not
alleged in the indictment.
In any case, it is well established that if a criminal statute
disjunctively lists multiple acts which constitute violations, “the
prosecution may in a single count of an indictment or
information charge several or all of such acts in the conjunctive
and under such charge make proof of any one or more of the
acts, proof of one alone, however, being sufficient to support a
conviction.” District of Columbia v. Hunt, 163 F.2d 833, 837-38
(D.C. Cir. 1947) (citing Crain v. United States, 162 U.S. 625
(1896)). Thus, it was no error for the government to seek a
conjunctively worded indictment and then ultimately secure a
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conviction on proof of one act alone. We find no constructive
amendment of the indictment in this case.
C. Effective Bifurcation of Charge
Brown’s final argument is that, in contravention of circuit
precedent, the district court’s disjunctive jury instruction
effectively treated the firearm and the ammunition it contained
as two separate offenses. In United States v. Clark, 184 F.3d
858, 871-72 (D.C. Cir. 1999), this Court held that “possession
of a loaded weapon constitutes a single offense” under 18 U.S.C.
§ 922(g)(1), and reversed one of two convictions a jury had
returned when it found a defendant guilty of possessing a loaded
firearm in violation of that statute. Brown argues that, in
function, the district court here bifurcated the charge when it
allowed the disjunctive instruction and repeatedly referred to
possession of the firearm and possession of ammunition as
separate “counts” when discussing the charges. Brown asserts
that the court gave the jury the impression that a loaded weapon
constituted more than one offense and thereby violated this
Court’s precedent.
We disagree. In Clark, the fundamental issue was not a
court’s implicit division of possession of ammunition and
possession of a firearm into separate counts, but an actual
indictment and conviction on two separate counts of violating 18
U.S.C. § 922(g)(1) for possession of a single loaded firearm.
Clark’s defendant was indicted for two counts of violating §
922(g)(1): one count for possessing a firearm and a second count
for possessing the ammunition inside. Id. at 862-63. While not
even discussed specifically, to the extent that Clark’s jury
instruction was flawed for permitting such a double conviction,
the flaw resulted from the improper indictment. Clark involved
two separate counts of conviction, but does not speak to the
issue of whether the two grounds within a single count need to
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be charged with a conjunctive “and” or can be charged with a
disjunctive “or.” Here, Brown was indicted for one violation of
§ 922(g)(1), and we reject his argument that the district court’s
discussion of two possibilities for violating that statute as
separate “counts” rises to the same level as the Clark district
court’s permission of separate convictions for a single violation
of § 922(g)(1).
The English language lacks a precise, simple term that
courts may use to refer to each act in a disjunctively phrased
criminal statute, so the district court’s slight lapse in referring to
each of the two elements as “counts” is understandable. But,
more importantly, we fail to see that use of this terminology led
to jury confusion about the nature of the crime with which
Brown was charged—specifically on the question of whether the
two acts constituted separate substantive counts of violating §
922(g)(1). The verdict form the court submitted to the jury
clearly showed the members that they could find Brown guilty
of violating the statute either by finding that he unlawfully
possessed a firearm, unlawfully possessed ammunition, or both.
The jury correctly completed the form by marking that it
unanimously found Brown guilty by reason of his possession of
ammunition while reflecting that it came to no conclusion on the
question of his possession of a firearm option by leaving that
space blank. We see no evidence that they considered the two
questions as belonging to separate offenses.
Finally, while Brown argues that the “court even went so far
as to send the jury back to deliberate further when the verdict
form was blank with respect to the firearm portion of Count I”
in support of his argument that the court implied to the jury that
the two elements were distinct substantive counts, the record
shows that the district court sent the jury back to deliberate
primarily because the foreperson appeared confused about what
the jury had actually decided on this count. In any case, when
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the jury subsequently returned and presented a coherent oral
verdict, the court accepted its verdict form with the firearm
possession section left blank. This demonstrates both that the
district court did not require the jury to return verdicts on both
acts and that the jury correctly understood that arriving at such
a verdict was not required to find the defendant guilty on that
count.
III.
For the reasons set forth above, appellant’s conviction is
Affirmed.