United States v. Ward , 166 F. App'x 169 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0042n.06
Filed: January 17, 2006
No. 04-2342
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
OSHEA PIERALL WARD, ) OPINION
)
Defendant-Appellant. )
BEFORE: GILMAN and COOK, Circuit Judges; MILLS, District Judge.*
RICHARD MILLS, District Judge.
Following a jury trial, Defendant-Appellant Oshea Pierall Ward was convicted
on all three counts contained in the Indictment: (1) felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The
district court sentenced Ward to thirty-seven months each on Counts One and Two,
*
The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
to be served concurrently, and ninety months on Count Three, to be served
consecutively to Counts One and Two. Ward appeals his conviction and sentence.
Ward raises three issues on appeal. First, he contends that the district court
erred in granting the Government’s motion for the introduction of certain evidence
pursuant to Rule 404(b) of the Federal Rules of Evidence. Next, Ward asserts that the
district court plainly erred in failing to instruct the jury that if it returned a guilty
verdict on the gun charge, it was required to specify which category of weapons it
unanimously has found Ward was using or carrying. Finally, Ward claims that the
district court erred in enhancing his sentence by sixty months when the type of firearm
involved was neither admitted by him nor charged in the Indictment and proved to a
jury beyond a reasonable doubt.
I. BACKGROUND
On November 18, 2003, a search warrant was executed at a home located at
11136 Corbett in Detroit, Michigan. After announcing the presence and purpose of
the police, Sergeant Rodger Johnson, the officer in charge, saw three men running
from a table in the dining room to the rear of the location. The officers pried the door
open to enter the residence. Upon entering the house, Sergeant Johnson observed
weapons and a large quantity of marijuana at the table where the men had been sitting.
Two of the men, Marco High and Aaron Nelson, were caught as they tried to escape
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through a side door. Ward was found lying beneath the basement stairs and was taken
into custody.
After the house was secured, the law enforcement officers searched the location.
Officer Green confiscated three large freezer bags containing marijuana, drug
paraphernalia and empty ziploc bags from the dining room table where the three men
had been sitting. Officer Marshall confiscated an SKS assault rifle and a revolver
from that same dining room table. Officer Wheeler recovered a revolver underneath
a sweater on a different table in the dining room.
Prior to trial, Ward opposed the Government’s motion for the introduction of
his prior conviction for attempt to deliver marijuana, which stemmed from a search
warrant that was issued and executed at 11012 Nottingham on January 9, 2002.
Counsel for Ward argued that the Government’s purpose in attempting to use the prior
conviction1 was not to show intent to distribute and common scheme or plan, but to
show bad character or Ward’s propensity to distribute narcotics, which he alleged
would be very prejudicial.
The district court granted the Government’s motion for the introduction of the
Rule 404(b) evidence. The Government presented the testimony of Officer Jason
1
In the previous case, Ward pled guilty to attempted delivery/manufacture of
5 to 45 kilograms of marijuana.
3
Kleinsorge, who participated in the 2002 search. Officer Kleinsorge stated that he
entered the residence and observed Ward sitting at a table with several bags of
marijuana in front of him. Officer Kleinsorge also found a nine millimeter automatic
handgun underneath the couch in the living room of the house in which Ward was
arrested. Officer Delshawn King also assisted in the search of the residence on
Nottingham. Ward directed Officer King to a large quantity of marijuana in an
upstairs bedroom closet.
After the presentation of the evidence, the district court instructed the jury that
Ward was not charged in Count One or in Count Three with possessing any particular
firearm and that if the Government proved that “[Ward] was in possession of one or
two, or perhaps even all three of these firearms, and . . . if [Ward is] in possession of
only one of the firearms, which one it does not make any difference.” The district
court further instructed the jury that one of the elements of the offense of possessing
a firearm in the furtherance of a drug trafficking crime is that “during and in the
furtherance of that crime the defendant knowingly possessed a firearm.” The district
court stated that the Government is required to prove beyond a reasonable doubt “that
a firearm was in the defendant’s possession or under the defendant’s control at the
time that a drug-trafficking crime was committed.” The jury found Ward guilty of
possession of a firearm in the furtherance of a drug trafficking crime, in addition to
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the other two counts.
Ward was sentenced on October 19, 2004. This was after the Supreme Court
decided Blakely v. Washington, 542 U.S. 296 (2004), but before it decided United
States v. Booker, 543 U.S. 220 (2005). Because of uncertainty at the time as to the
fate of the U.S. Sentencing Guidelines, the district court sentenced Ward to three
alternative sentences. The court provided, however, that “the actual judgment of
sentence is going to be 127 months.” This reflected the ninety month sentence on
Count Three,2 to be served consecutively to the concurrent thirty-seven month
sentences on Counts One and Two.3
II. STANDARD OF REVIEW
This Court reviews for abuse of discretion a district court’s decision to admit
“other acts” evidence under Rule 404(b). United States v. Jenkins, 345 F.3d 928, 936
(6th Cir. 2003). Because trial counsel did not object to the district court’s instruction
to the jury for the lack of specificity as to what type of weapon was possessed by
Ward in the furtherance of a drug trafficking crime, this Court reviews that claim for
2
The mandatory minimum sentence of 120 months on the 18 U.S.C. § 924(c)
charge was reduced by thirty months, pursuant to the Government’s motion under
U.S.S.G. § 5K1.1, in light of Ward’s substantial assistance in an unrelated case.
3
The district court imposed alternative sentences of eighty-seven months
imprisonment and seventy months imprisonment. These sentences were based on a
guideline range of 97-106 and a downward departure motion under § 5K1.1.
5
plain error only. United States v. Sassanelli, 118 F.3d 495, 499 (6th Cir. 1997). We
review de novo a district court’s interpretation of the Sentencing Guidelines. United
States v. Jackson, 401 F.3d 747, 748 (6th Cir. 2005).
III. ANALYSIS
A. Rule 404(b) Evidence
Ward contends that the district court erred in granting the Government’s motion
to introduce his prior conviction. Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such evidence
it intends to introduce at trial.
Fed. R. Evid. 404(b). In determining the admissibility of Rule 404(b) evidence, the
district court assesses whether the prior act occurred, whether the act is probative of
a material issue other than character, and whether the act’s probative value is
substantially outweighed by its prejudicial effect. Jenkins, 345 F.3d at 937; see also
Fed. R. Evid. 403.
The district court noted that the conduct underlying Ward’s conviction in 2002
involved facts that are similar to those in this case. The court stated, “The past
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conduct of Defendant, his close proximity to packaged drugs, and his admitted attempt
to distribute marijuana, is probative of his intent in this case.” The district court
proceeded to conclude that the probative value of the prior act evidence was not
substantially outweighed by its potential prejudicial effect.
Ward asserts that his prior conviction in 2002 for attempt to deliver marijuana
was introduced to prove his propensity to distribute narcotics, and not to show intent
and/or common scheme or plan. Ward notes that he had no criminal history prior to
2002. Moreover, the factual scenarios surrounding both events differ and do not show
that Ward had any intent to distribute marijuana. Ward contends that the only
similarity between the two cases is that both involved the discovery of drugs on a table
with packaging material, which should not have been sufficient for purposes of
admitting the prior act. Ward also alleges that there are key differences between the
two cases. Regarding the 2002 conviction, Ward was in his girlfriend’s home alone.
As for this case, Ward was arrested in his uncle’s house with two other people present.
Ward also asserts that because of the time span of nearly two years between the
incidents, it would be unfairly prejudicial to allow evidence of the facts underlying the
2002 conviction.
Ward also asserts that the district court erred in allowing evidence that a
handgun was found underneath a couch in the living room of the house located on
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Nottingham. Because he was not convicted of any firearm crime relating to the 2002
incident and because there was no indication that he possessed the handgun, Ward
contends that the district court erred in allowing testimony regarding the recovery of
a handgun at the Nottingham residence.
The Government asserts that evidence regarding Ward’s prior drug crime was
probative of a material issue in this case, specifically his intent to possess with intent
to distribute narcotics. In the present case when Ward was arrested, he was seen
sitting at a table with two guns, three large freezer bags of marijuana, one ziploc bag
containing loose marijuana, one ziploc bag containing seven knotted bags of
marijuana and one ziploc bag containing sixteen knotted bags of marijuana. The
Government notes that during the execution of the search warrant in the 2002 case,
Ward was found sitting at a table with two plastic bags containing marijuana and one
plastic bag containing cocaine. Moreover, twenty ziploc bags of marijuana (weighing
over eighteen pounds) were found in a bedroom closet. The Government alleges that
it also presented testimony regarding a firearm that was discovered underneath the
couch so that the jury could have a complete history of what occurred during the raid.
The Government further asserts that it argued, and the district court emphasized
with a limiting instruction, that the prior activity could not be used to demonstrate that
Ward was acting in conformity with his character by dealing drugs. Rather, the past
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conduct was merely introduced to assist the jury in determining Ward’s intent on
November 9, 2003.
When the crime is possession with intent to distribute, the Government may use
Rule 404(b) evidence to prove the statutory element of specific intent, thereby making
intent a material issue. United States v. Haywood, 280 F.3d 715, 721 (6th Cir. 2002).
The fact that the prior act took place more than two years before the charged conduct
in this case does not render the evidence unduly prejudicial. United States v. Ismail,
756 F.2d 1253, 1260 (6th Cir. 1985) (allowing evidence of prior bad acts despite the
fact that those events occurred between two and four years before the charged
conduct). Moreover, to the extent that Ward claimed innocent association at trial,
such a defense opens the door to Rule 404(b) being presented. United States v.
Lattner, 385 F.3d 947, 957 (6th Cir. 2004).
As for the testimony regarding the firearm that was found in the 2002 search
at the Nottingham residence, the Government contends that it was introduced so that
the jury could have a complete history of what occurred during the search. This Court
has noted that guns can be fairly viewed as a tool of the drug trade. Jennings v. Rees,
800 F.2d 72, 75 (6th Cir. 1986) (noting that a “loaded handgun may fairly be viewed
as a tool of the drug trafficker’s trade”).
We are unable to conclude that the district court erred in determining that the
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prior act evidence was probative of Ward’s intent to distribute drugs on November 9,
2003. There is no allegation that the district court’s limiting instruction was
inadequate. Given the district court’s limiting instruction that the prior activity could
not be used to demonstrate that Ward was acting in conformity with his character, we
conclude that the district court did not abuse its discretion in balancing the prejudicial
and probative value of this evidence.
B. Instruction as to Type of Weapon
Ward contends that the district court plainly erred when it instructed the jury
on Count Three, possession of a firearm in furtherance of a drug trafficking crime, and
did not instruct the jury to find which weapon or weapons Ward possessed. The
Indictment lists three weapons: one Norinko SKS rifle, one Rossi .357 revolver, and
one Colt .22. Two of the weapons, the Rossi .357 revolver and Colt .22, carry a
penalty of five years; the Norinko SKS rifle carries a penalty of ten years. 18 U.S.C.
§ 924(c). Ward notes that the jury was not given a specific instruction or interrogatory
to determine his guilt or innocence as to possessing the Norinko SKS rifle, as opposed
to the other firearms listed in the Indictment.
Ward asserts this Court has held that if the Indictment includes one substantive
drug trafficking offense and separate counts under § 924(c) for weapons that fall into
more than one weapons category as defined by the statute, special interrogatories or
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verdict forms should be submitted, thereby requiring a jury that renders a guilty
verdict on the gun charge to specify which category or categories of weapons it
unanimously has determined the defendant was using or carrying. United States v.
Sims, 975 F.2d 1225, 1235 (6th Cir. 1992). Ward also notes that this Court recently
held that the mandatory minimum of § 924(c) “is not binding on a sentencing court
unless the type of firearm involved is charged in the indictment and proved to a jury
beyond a reasonable doubt.” United States v. Harris, 397 F.3d 404, 406 (6th Cir.
2005). Accordingly, Ward contends that the district court erred when instructing the
jury that it did not have to decide which particular firearm he possessed and his
conviction should therefore be overturned.
The Government notes first that because Ward did not object to the jury
instructions that produced a general verdict at trial, he consented to the instructions.
Therefore, we review his claim for plain error only. United States v. Olano, 507 U.S.
725, 731 (1993). Plain error review involves finding an error that is plain and that
affects a defendant’s substantial rights. This Court should reverse only if the forfeited
error “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (internal quotation marks omitted).
The Government also alleges that Ward’s reliance on Harris is misplaced and
that the holding does not require the Court to abandon the sentence. Specifically, the
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semi-automatic weapon was charged in the Indictment, albeit along with two other
firearms. Accordingly, the Government contends that the district court is entitled to
find that no reasonable juror could have concluded that Ward did not jointly and
constructively possess the semi-automatic assault rifle, thereby concluding that the
ten-year mandatory minimum is appropriate.
The evidence in this case was overwhelming that Ward possessed narcotics and
firearms at the time of his arrest. He was sitting at a table with marijuana and two
guns, including the semi-automatic assault rifle, in front of him. We conclude that
because no rational jury could have determined that Ward possessed one of those guns
but not the other, any error regarding the jury instruction cannot be said to affect the
fairness, integrity or public reputation of judicial proceedings. Accordingly, Ward is
unable to establish that the district court committed plain error in failing to require a
special verdict form or giving a weapon-specific jury instruction.
C. Enhancement of Ward’s Sentence
Ward contends that the district court improperly increased his sentence by sixty
months based upon the erroneous guilty verdict on Count Three, for possession of a
firearm in the furtherance of a drug trafficking crime. This is because the jury did not
specify which category or categories of weapons it determined that Ward was using
or carrying. Ward contends, therefore, that because the sixty-month enhancement was
12
not a fact admitted by him or proved to a jury beyond a reasonable doubt, the sentence
violated the rule in United States v. Booker, 543 U.S. 220 (2005). Based on the
Supreme Court’s decision in Booker and this Court’s decision in Harris, 397 F.3d at
412-13, Ward argues that the sixty-month enhancement for possessing a semi-
automatic assault weapon pursuant to 18 U.S.C. § 924(c) cannot be imposed.
Ward also notes that pursuant to Booker, the Sentencing Guidelines are now
advisory, thereby requiring the sentencing court to consider Guideline ranges, but
permitting that court to tailor the sentence in light of other statutory concerns. One
of the alternative sentences given by the district court was seventy months’
imprisonment, based on a range of 97-106 months and a downward departure under
U.S.S.G. § 5K1.1. According to the district court, this sentence assumes “that there
is no enhancement for the semi-automatic assault rifle.” Ward asks that in the event
his convictions are not reversed and the case is not remanded for retrial, the case be
remanded to the district court for re-sentencing to a term of seventy months’
imprisonment.
The Government asserts that in light of the Supreme Court’s decision in
Booker, and the district court’s pronouncement of multiple alternative sentences, this
case should be remanded to the district court for re-sentencing. Because it alleges that
the evidence of Ward’s possession of a semi-automatic assault weapon was
13
overwhelming, the Government further contends that at the re-sentencing hearing, the
district court should be permitted to impose a ten-year statutory sentence in
connection with Ward’s § 924(c) conviction.
We conclude that the district court committed plain error in sentencing Ward.
The sentence in this case was “imposed under a framework that has now been
substantially altered by Booker’s severing and excising of 18 U.S.C. § 3553(b)(1), the
provision that made the Guidelines mandatory.” United States v. Barnett, 398 F.3d
516, 530 (6th Cir. 2005). The district court must be afforded the opportunity to
sentence Ward “under a regime in which the guidelines are treated as advisory.” Id.
Because it is unclear as to what sentence the district court would have imposed under
an advisory guidelines system, we will vacate Ward’s sentence and remand for re-
sentencing.
In light of the overwhelming evidence that Ward possessed the semi-automatic
assault weapon, we agree with the Government’s contention that the district court
should be permitted on remand to impose the ten-year statutory sentence in connection
with Ward’s § 924(c) conviction. However, we are not instructing the district court
to impose such a sentence.
IV. CONCLUSION
For the reasons stated herein we AFFIRM Ward’s convictions, but VACATE
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Ward’s sentence and REMAND for re-sentencing pursuant to Booker and its progeny.
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