United States v. Floyd Dewayne Davis ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 3, 2007
No. 06-12418 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00211-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD DEWAYNE DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(April 3, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Floyd Dewayne Davis appeals his convictions for (1) making a false
statement in connection with the acquisition of a firearm, in violation of 18 U.S.C.
§ 922(a)(6); (2) causing a federal firearms licensee to make a false statement, in
violation of 18 U.S.C. § 924(a)(1)(A); and (3) possession of a firearm by an
unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3).
Davis’ sole contention in this appeal is that the district court committed reversible
error by refusing to adopt his proposed jury instructions. For the reasons set forth
below, we affirm.
I.
Davis’ convictions stem from his purchase of two assault rifles from a
Mobile, AL gun dealer. He bought the first assault rifle on December 13, 2004 and
the second one on March 21, 2005. Before allowing Davis to purchase either rifle,
the gun dealer required Davis to fill out ATF Form 4473, a form used by the
Bureau of Alcohol, Tobacco, and Firearms to identify people who purchase
firearms illegally. One question on Form 4473, question 12(e), asks whether the
prospective purchaser “is an unlawful user of, or addicted to, marijuana, or any
depressant, stimulant, or narcotic drug, or any other controlled substance.” Davis
answered “no” to question 12(e) both times that he filled out Form 4473.
Subsequent events proved that Davis was lying when he answered question
12(e). On March 29, 2005, two Mobile police detectives saw Davis drive through
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two red lights in his black Hummer. When the detectives pulled Davis over, they
noticed that one of the assault rifles he had purchased was laying on the back seat.
They also found marijuana and codeine inside of the vehicle. After the detectives
found the drugs, they asked Davis about his drug use, and he told them that he
smoked marijuana every day.
About four months later, on July 28, 2005, Davis was again pulled over for
traffic violations. This time law enforcement officials found more marijuana inside
of Davis’ vehicle. Apparently, after Mobile law enforcement officers found the
drugs and assault rifle inside of Davis’ vehicle, they alerted the ATF, and the ATF
began investigating how Davis had acquired the firearm. As part of that
investigation the ATF searched Davis’ home. During the search they found
marijuana, codeine, drug paraphernalia, and ammunition for the assault rifles.
On August 25, 2005, the government obtained a five-count superceding
indictment against Davis. The counts against Davis included (1) making a false
statement in connection with the acquisition of a firearm, in violation of 18 U.S.C.
§ 922(a)(6) (counts one and three); (2) causing a federal firearms licensee to make
a false statement, in violation of 18 U.S.C. § 924(a)(1)(A) (counts two and four);
and (3) possession of a firearm by an unlawful user of a controlled substance, in
violation of 18 U.S.C. § 922(g)(3) (count five).
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The false statement that Davis was charged with in counts one through four
was his representation on Form 4473 that he was not an unlawful user of marijuana
or any other controlled substance. He was tried on all five counts on December 1,
2005. Before instructing the jury on the charges against Davis, the district court
held a charge conference. At that conference Davis’ attorney offered two proposed
jury instructions. The first instruction, a proposed definition of “unlawful user,”
was taken from a Fifth Circuit opinion. It reads as follows:
[A]n “unlawful user” is one who uses narcotics so frequently and in
such quantities as to lose the power of self control and thereby pose a
danger to the public morals, health, safety, or welfare. In other words,
an “unlawful user” is someone whose use of narcotics falls just short
of addiction, as that term is defined by the Controlled Substances Act.
United States v. Herrera, 289 F.3d 311, 323–24 (5th Cir. 2002), vacated by 300
F.3d 530 (5th Cir. 2002) (en banc), abrogation recognized by United States v.
McCowan, 469 F.3d 386 (5th Cir. 2006). The second of Davis’ proposed jury
instructions was taken from a Ninth Circuit case. It reads as follows:
[I]f a word has two meanings and if the answer to a question is
literally true under one meaning of a word, the answer cannot be said
to be false because, by some process of interpretation, including the
determination of congressional purpose, a second meaning might be
given to the word.
United States v. Isaacs, 539 F.2d 686, 688 (9th Cir. 1976). It appears from Davis’
brief that he sought to have the second proposed instruction submitted to the jury
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because some of the testimony at trial suggested that ATF officers and the
employees of the gun dealership held different “definitions as to what constitutes
an unlawful user.”
The district court did not give either proposed instruction. Instead, the
district court instructed the jury as follows:
The term “unlawful user of a controlled substance” means a
person who uses a controlled substance in a manner other than as
prescribed by a licensed physician.
The Defendant must have been actively engaged in use of a
controlled substance during the period of time he allegedly made a
false statement or allegedly possessed the firearm. But the law does
not require that he used the controlled substance at the precise time he
allegedly made the false statements in Counts One through Four or
allegedly possessed the firearm in Count Five.
An inference that a person was a user of controlled substances
may be drawn from the evidence of a pattern of use or possession of a
controlled substance that reasonably covers the time that the firearm
was possessed.
Davis’ attorney made no specific objection to the district court’s omission of
his proposed definition of “unlawful user,” but he did make a specific objection to
the district court’s omission of the proposed “multiple meanings” instruction. The
district court overruled Davis’ objection, stating that the proposed instruction was
“(a) confusing and (b), not a correct statement of the law.” The jury convicted
Davis on all five counts.
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II.
We review the district court’s refusal to give a proposed jury instruction for
abuse of discretion. United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005),
cert. denied, 126 S. Ct. 1931 (2006). “A trial judge’s refusal to give a requested
instruction will warrant a new trial only if (1) the requested instruction was
substantively correct, (2) the court’s charge to the jury did not cover the gist of the
instruction, and (3) the failure to give the instruction substantially impaired the
defendant’s ability to present an effective defense.” United States v. Roberts, 308
F.3d 1147, 1153 (11th Cir. 2002).
Each of Davis’ proposed jury instructions relate to the term “unlawful user.”
His argument for the first proposed instruction is that the statute’s failure to define
the term “unlawful user” created a situation where the Fifth Circuit’s definition in
Herrera, 289 F.3d at 323–24, since abandoned, should have been included.
Although we normally review a district court’s refusal to give a proposed
jury instruction for abuse of discretion, Klopf, 423 F.3d at 1241, Davis did not
object to the district court’s refusal to offer his first proposed instruction.
Consequently, our review is for plain error. See United States v. Dudley, 463 F.3d
1221, 1227 (11th Cir. 2006). To satisfy his burden under a plain error review the
defendant must demonstrate (1) an error, (2) that is plain, and (3) that affects
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substantial rights. United States v. Olano, 507 U.S. 725, 730–32, 113 S. Ct. 1770,
1776 (1993).
Davis has not shown any error, much less a plain one. The Fifth Circuit has
vacated the holding of the case from which Davis extracted his proposed
instruction. See McCowan, 469 F.3d at 391–92. The district court could not
possibly have committed a plain error by refusing to offer a jury instruction that
was based on a legal definition that has never been part of the law of this circuit
and is based on the decision of another circuit that was itself vacated en banc.
Because Davis did properly object to the district court’s failure to consider
his second proposed jury instruction, we review the district court’s decision for an
abuse of discretion. Klopf, 423 F.3d at 1241. Davis’ argument in support his
second, “mixed meaning” instruction proceeds as follows: (1) an ATF agent, an
employee of the gun dealership, and a manager of the gun dealership all testified
that they did not know the legal meaning of the term “unlawful user” as defined in
18 U.S.C. §§ 922, 924; (2) their testimony shows that the term “unlawful user” is
ambiguous; and (3) because the term is ambiguous, the jury could not properly
discharge its duties without the aid of the “mixed meaning” instruction.
Davis’ argument is not persuasive. We have previously defined an unlawful
user as a person whose drug use is “ongoing and contemporaneous with his firearm
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possession.” United States v. Edmonds, 348 F.3d 950, 953–54 (11th Cir. 2003)
(quoting United States v. Bernardine, 73 F.3d 1078, 1082 (11th Cir. 1996)). The
district court’s instruction was consistent with that definition, and we have never
required a “mixed meaning” instruction in the context of 18 U.S.C. §§ 922, 924.
Thus, the district could was under no obligation to submit Davis’ multiple-
meanings instruction to the jury. Moreover, Davis has not shown how the district
court’s refusal to the instruction impaired his ability to present an effective
defense. See Klopf, 423 F.3d at 1241. As a result, he has not carried his burden of
showing that the district court abused its discretion by refusing his second
proposed instruction.
There is one more item to address, however. Under the “Nature of Offense”
section on the first page of the district court’s judgment, the court inadvertently
transposed the description of the offense that Davis was charged with in counts one
and three in the superceding indictment with the description of the offense that
Davis was charged with in counts two and four of the indictment. We therefore
vacate the district court’s judgment and remand this case to the district court for the
limited purpose of allowing it to correct that clerical error. See United States v.
Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (remanding with directions to the
district court to correct the clerical errors where the statute cited in the judgment
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and commitment order was incorrect). Because this error does not affect Davis’
substantial rights, it does “not prejudice the defendant in any reversible way.”
United States v. Diaz, 190 F.3d 1247, 1252–53 (11th Cir. 1999).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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