United States v. Broderick Birts , 170 F. App'x 1001 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2546
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Broderick Birts, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 13, 2006
Filed: March 20, 2006
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Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
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PER CURIAM.
In a superseding indictment, the government charged Broderick Birts with three
counts of possession with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and distribution of cocaine base in violation of § 841(a)(2). At trial, the
Government proceeded on the theory that Birts possessed the cocaine with intent to
distribute it. Birts objected to a jury instruction stating the government only had to
prove Birts possessed with intent to distribute, rather than both possessed with intent
to distribute and distributed the drug. The Government responded that charging
protocols required the Government to charge both crimes, but allowed the
Government to prove either one. The district court* agreed and overruled Birts’s
objection, finding an instruction on distribution would confuse the jury. To satisfy
Birts’s concerns, the court offered to instruct the jury that the government was not
proceeding on the theory of distribution. Birts agreed the instruction would “cure
[his] problem.” The court amended the jury instructions to state the Government was
proceeding on the theory of possession with intent to distribute cocaine base, not on
the theory of distribution. The court thus instructed the jury that the elements of the
offense were that Birts possessed cocaine base, he knew he was possessing or
intended to possess it, and he intended to distribute some or all of the cocaine base to
another person. The jury convicted Birts on all three counts, and the district court
sentenced Birts to 120 months in prison.
On appeal, Birts contends the district court committed error in deleting
distribution from the instructions and preventing Birts from arguing the government
had failed to prove the elements of the distribution charge. We disagree. The district
court did not abuse its discretion in instructing the jury. United States v. Urkevich,
408 F.3d 1031, 1036 (8th Cir. 2005). When a statute like § 841(a) “‘is worded in the
disjunctive . . . , federal pleading requires that an indictment charge in the conjunctive
to inform the accused fully of the charges.’” Id. (quoting United States v. Klein, 850
F.2d 404, 406 (8th Cir. 1988)). District courts may instruct the jury in the disjunctive
form used in the statute because “‘[p]roof of any one of the violations charged
conjunctively in the indictment will sustain a conviction.’” Id. (quoting Klein, 850
F.2d at 406). Here, the district court simply omitted the distribution language from
the model jury instruction in response to Birts’s concern. Jury instructions
specifically instructing on only one of the theories charged in the indictment do not
amend the indictment, alter the Government’s burden of proof, or otherwise prejudice
the defendant. United States v. Pate, 932 F.2d 736, 737 n.2 (8th Cir. 1991). Further,
*
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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the district court properly prohibited Birts from arguing the Government had charged
distribution but failed to prove it, because the Government was not required to prove
distribution under the superseding indictment. Evidence of distribution was admitted
only to show Birts’s intent to distribute.
We thus affirm Birts’s conviction.
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