United States v. Daniel J. Leichtnam , 948 F.2d 370 ( 1991 )

COFFEY, Circuit Judge,

concurring in part and dissenting in part.

I join the majority in upholding the drug conspiracy conviction of defendant Daniel J. Leichtnam. I also join in vacating the drug conspiracy sentence and in remanding it for resentencing because the trial judge failed to make a finding about the quantity of drugs upon which he based the sentence. I dissent, however, as to the reversal of his firearms conviction.

I. DISCUSSION

Leichtnam was convicted of a firearms charge under 18 U.S.C. § 924(c) which provides, in pertinent part, for the imprisonment for five years of any person who uses or carries a firearm during and in relation to any drug trafficking crime. The firearms indictment against Leichtnam charged that the defendant did “knowingly use and carry a firearm, to wit: a Moss-berg rifle, Model 250CA with no serial number, during and in relation to a drug trafficking scheme....”

The majority properly concludes that substantial evidence was presented at trial establishing that the defendant violated 18 U.S.C. § 924(c) as to the Mossberg rifle. “This is not a case,” the majority states, “where the gun just happened coincidentally to be in the same room as drugs and drug paraphernalia.... The police found the Mossberg in the same place as the cocaine and drug paraphernalia in the closet in Leichtnam’s bedroom and there was testimony, in addition, that Leichtnam had made sales from his home. That much evidence might very well have been enough to support a conviction under 18 U.S.C. 924(c).”

Despite this evidence, the majority, for reasons not based in current case law, reverses the defendant’s firearm conviction. The majority arrives at this result by accepting the defendant’s spurious claim that the judge, through his instructions, and the prosecutor, with his submission of evidence of the defendant’s use of two handguns (evidence which was properly received after denial of a motion to suppress), combined to constructively amend the firearm indictment.

As a threshold matter, I am unconvinced that it is appropriate for the court to address the defendant’s constructive amendment argument. Defendant’s counsel failed to object during the trial to the introduction of the handguns, failed to object to the allegedly erroneous jury charge and failed to make a motion at the close of the trial for acquittal on the firearms charge based on the alleged constructive amendment of the indictment. As the majority states, in these circumstances, “appellate review would ordinarily be limited to a search for ‘plain’ error ... which implies a mistake so serious that but for it Leichtnam probably would have been acquitted” (citations omitted). I agree with the majority’s assertion that “plain error” review would have made “this an easy case. For if the physical evidence and the instructions had been limited only to the Mossberg, the jury’s verdict would almost certainly have been the same.”

Nevertheless, the majority refuses to exercise its discretion to uphold the jury verdict by applying the obvious “plain error” standard and concludes that the government “waived waiver as a defense” by failing to make the waiver argument in its appellate brief. Although it is true that we normally refuse to consider arguments not presented (see, e.g., Garlington v. O’Leary, 879 F.2d 277, 282-83 (7th Cir.1989); Andrews v. United States, 817 F.2d 1277, 1278-79 n. 1 (7th Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 166, 98 L.Ed.2d 120 (1987)), it is within our discretion to consider such arguments when to do so is in the interests of justice. Because Leichtnam’s firearms conviction was supported by overwhelming evidence I am at a loss to understand why the majority, if it is convinced that the trial judge committed error, does not exercise its discretion and consider any error harmless. Moreover, the fact that defendant’s counsel failed to object to the introduction of the evidence, failed to object to the jury charge, and failed to make a motion for acquittal on the firearm charge after the return of the guilty verdict, provides more than ample reason to consider the constructive amendment argument waived in spite of the fact that the government did not believe that the trial court committed error and thus did not raise the issue of waiver in its appellate brief. Instead, the government argued that the novel constructive amendment issue raised for the first time on appeal lacked merit.

Moreover, I am in complete disagreement with the majority’s underlying assumption that the handguns were improperly received in evidence. The government chose to present the evidence of the handguns in its proof of the drug conspiracy for which Leichtnam was tried and convicted. This is a perfectly legitimate basis for the admission of the evidence. In United States v. Alvarez, 860 F.2d 801 (7th Cir.1988), cert. denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989), we considered a challenge to the admission of a gun as evidence of its owner’s involvement in a drug conspiracy. The defendant [Ms. Rivera] .had argued that the gun, which was discovered by police along with cocaine and drug paraphernalia during a valid search, was irrelevant to the drug conspiracy charge and unduly prejudicial. We rejected both arguments, observing that:

“Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment.” United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976).

We find no reason to disturb the court’s sound exercise of discretion in admitting the pistol. As the government points out, the gun was not cumulative evidence; it raised the inference that the cocaine was valuable to Ms. Rivera and, therefore, worth protecting. We cannot construe the admission of the weapon as confusing the jury.

Alvarez, 860 F.2d at 829, 830. Given the deference that trial judges are accorded in evidentiary decisions, it would be inappropriate for this court to question the admission of the handguns evidence. See United States v. Garver, 809 F.2d 1291, 1297 (7th Cir.1987) (“The district court has broad discretion to determine the admissibility of evidence, and ... we will reverse the court’s evidentiary rulings only upon a clear showing of abuse of discretion.” (citations omitted) (emphasis added)). Thus, the receipt of the handguns evidence was entirely proper when establishing Leicht-nam’s involvement in the drug conspiracy. See, also, United States v. Edwards, 885 F.2d 377, 389 (7th Cir.1989) (holding that during a search the “police could reasonably have believed that [firearms] were part of the suspected cocaine dealing operation”).

Even considered on its merits, however, Leichtnam’s constructive amendment argument does not warrant reversal of his firearms conviction. According to the majority’s reasoning, the constructive amendment occurred in two steps. First, the prosecution introduced evidence that the defendant violated § 924(c) by using handguns (in addition to the Mossberg rifle) in connection with his drug trafficking scheme.¹ The prosecution presented as exhibits two handguns found in the defendant’s home during the same search which uncovered the Moss-berg rifle. The handguns were found in the same room as the rifle. The majority raises no questions about the legality of that search.

Having allowed evidence of these two handguns to be received, the trial judge, according to the majority, committed a reversible error when he gave the jury the following instruction on the firearms charge:

[I]n order to establish that crime the government must prove the following propositions. First, that the defendant committed the [cocaine possession and distribution] conspiracy charged in Count 1. Two, that the defendant intentionally used or carried a firearm and; Three that this firearm was used or carried during and in relation to the conspiracy.

The majority asserts that, given the introduction of evidence as to other guns, the judge’s failure to specify in his charge that the firearms indictment pertained only to the Mossberg rifle amounted to a constructive amendment of the indictment, even though the defense counsel did not object to the instructions much less request and/or offer any modification. The majority cannot properly reach this conclusion by applying controlling legal precedent.

The controlling Supreme Court pronouncement in the area of constructive amendments of indictments, as the majority recognizes, is Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). In Stirone, the Supreme Court held that events at trial can effectively amend an indictment, requiring reversal of a conviction, even in the absence of a formal amendment. Stirone involved an indictment which alleged that the defendant unlawfully interfered with the movement of sand in interstate commerce in violation of the Hobbs Act. The sand in question was to be transported into Pennsylvania and used in the construction of a steel-processing plant. The district court, however, permitted the government to offer evidence of an effect upon interstate commerce not only with respect to sand, but also with respect to steel shipments leaving the Pennsylvania plant. Steel, of course, is a commodity entirely separate and distinct from sand. No mention of interference with the transportation of another separate and distinct commodity such as steel was made in the indictment. Nevertheless, the jury was instructed that, as to the interstate commerce aspect of the Hobbs Act violation, the defendant's guilt could be based either on a finding of an effect on the interstate movement of sand into Pennsylvania or a finding that the sand in question was used in the construction of the steel plant whose shipments would later move in interstate commerce.

The Stirone Court, in concluding that the indictment had been impermissibly amended, held that

[A] court cannot permit a defendant to be tried on charges that are not made in the indictment against him.... Yet the court did permit that in this case. The indictment here cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States.... The grand jury which found this indictment was satisfied to charge that Stirone’s conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone’s conduct would interfere with interstate exportation of steel.... And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned.

Stirone, 361 U.S. at 217, 80 S.Ct. at 273 (citations omitted).

This variation between the indictment on the one hand and the evidence presented and the jury charge on the other, the Supreme Court concluded, “destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Id.

The majority in this case, in reaching out to achieve the result it does, somehow concludes that the circumstances of Leicht-nam’s conviction are analogous to those found in Stirone. They are not. In the case at issue before us, we have a jury charge, approved by both counsel before it was delivered, which referred to “a firearm” {both rifles and revolvers are classified as firearms) and an indictment and conviction supported by overwhelming evidence of possession of the specific Moss-berg rifle charged in the indictment. This is not akin to the Stirone ease where an indictment charging interference with the interstate movement of sand transmuted into a trial which included charges involving the interstate movement of steel from a plant which was to be built using the sand specified in the indictment. The circumstances here are more analogous to charging a defendant with interfering with the interstate movement of a specific grade of sand, such as that used to mix with mortar, then allowing the introduction of evidence with respect to a different grade of sand, such as that used to make cement, and then instructing the jurors that they could convict the defendant if they found that he interfered with the interstate movement of sand.

The elaboration by this and other courts of the doctrine set out in Stirone further undermines the majority’s reasoning. “The cases have found a constructive amendment where there is a complex of facts distinctly different from those set forth in the charging instrument and not ... where there is a single set of facts. C. Wright, Federal Practice and Procedure, Crim.2d § 516 at 27 (1982)_ In addition, courts have found constructive amendments where the crime charged was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.” United States v. Muelbl, 739 F.2d 1175, 1180 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 388, 83 L.Ed.2d 322 (1984) (quoting United States v. Von Stall, 726 F.2d 584, 586 (9th Cir.1984)).

The evidence received concerning the handguns discovered during a lawful search and ruled admissible during the denial of the defendant’s motion to suppress did not present the jury with a “distinctly different” set of facts. All the facts presented arose out of the defendant’s drug trafficking scheme and his use of firearms in connection therewith.² Moreover, the crime charged was not “substantially altered at trial” by the introduction of the handguns evidence and the jury instructions. Leichtnam knew he was charged with the statutory crime of using a firearm in connection with his drug trafficking. The jury, after receiving overwhelming evidence of guilt, properly convicted him of a violation of 18 U.S.C. § 924(c), specifically the use of the Moss-berg rifle found with the drug paraphernalia.

Moreover, examining the jury instructions in their entirety, as we must, casts further doubt on the majority’s conclusion that the indictment was constructively amended. During the disputed instructions, the trial judge read the firearms indictment to the jury, including the specific reference only to the Mossberg rifle. The trial judge made no reference to the handguns evidence during his instructions. It is clear that in the segment of his instructions in which he made the reference to “a firearm”, which the majority finds so decisive, he was, as is required, merely summarizing the elements of the firearm offense under 18 U.S.C. § 924(c). In his closing argument, the prosecutor did not refer to the handguns evidence either, but instead discussed only the “specific gun alleged” in the indictment, obviously the Mossberg rifle. Finally, the specific finding of the jury, a verdict which stated that they found the defendant guilty of “knowingly using and carrying a firearm during a drug trafficking crime” — not firearms — provides further indication that the jurors convicted Leichtnam on the evidence of the Mossberg rifle, which was found in the closet along with the other drug paraphernalia. Considering the evidence of the jury charge makes it highly unlikely that, in any manner, shape, or form, the “firearm” reference constructively amended the indictment in the eyes of the jury. Placing the reference to “a firearm” in its proper context when considering the totality of the jury charge undermines the majority’s conclusion that the instructions amounted to reversible error.

An analysis of these facts under our variance doctrine provides no alternative basis for reversal of the defendant’s firearms conviction. A variance occurs when “the evidence proves facts different from those alleged in the indictment” causing the defendant to be “deprived of notice of the details of the charge against him.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984) (quoting United States v. Salinas, 654 F.2d 319, 323-24 (5th Cir.1981)). The question of whether a variance occurred, however, need not be decided because a variance is cause for reversal of a conviction only if the defendant has been prejudiced by the variance. Id. at 311. A variance is not prejudicial unless it deprives the defendant of “an adequate opportunity to prepare a defense” or exposes “him to a risk of being prosecuted twice for the same offense.” Muelbl, 739 F.2d at 1181 (emphasis added) (citation omitted). Neither circumstance exists in this case. The handguns evidence did not deprive the defendant of an adequate opportunity to prepare a defense. In fact, the defendant attempted, at a pre-trial evidentiary hearing, to have the search of his home (which resulted in the seizure of the drug paraphernalia, drugs, rifle and the handguns) declared unlawful. The trial judge denied the defendant’s motion to suppress and ruled that the evidence obtained was the result of a lawful search. Leichtnam was thus well aware of the existence, as well as the probable introduction in evidence, of the handguns. The second concern expressed by the Muelbl court about variances in indictments — that they may lead to double jeopardy — also is not applicable to these facts. The evidence of the handguns spread across the record would bar Leicht-nam from being charged again on the firearms count. Finally, as the majority acknowledges, substantial evidence was received at trial that the defendant violated 18 U.S.C. § 924(c) as to the Mossberg rifle. The rifle, it bears repeating, was found in a closet along with cocaine and drug paraphernalia. Therefore, the introduction without objection of evidence of the other firearms and the trial judge’s instructions which referred to “a firearm”— again, without objection — could not have prejudiced the defendant. The rifle evidence alone was and is sufficient to support the jury’s guilty verdict.

II. CONCLUSION

Courts must use care in reversing convictions, such as Leichtnam’s, that are overwhelmingly supported by persuasive evidence. This is especially true in this case when defendant’s counsel failed to object to the introduction of the handguns evidence, failed to object to the allegedly erroneous jury charge, and failed to make a motion for acquittal at the close of trial. To upset a jury’s verdict without firm support in precedent undermines public confidence in the criminal justice system and feeds the common and justifiable perception that too many guilty defendants evade justice by invoking legal technicalities. The majority attempts to dismiss this observation as nothing more than an assertion that public opinion ought to guide constitutional adjudication. Of course it should not, and nothing in this dissent suggests otherwise.

What I am stating is that too often Americans forget that the habits, customs and mores of the American people breathe life into the Constitution’s words by creating a polity in which rights and freedoms are respected. The courts’ enforcement of the Bill of Rights is supported by and, indeed, ultimately depends upon, a belief shared by most Americans that it is right and proper to protect those liberties. The moment this moral consensus is frayed, the courts will have difficulty preventing the erosion of our constitutional protections. They will be like the parchment promises of what until only recently were the constitutions of the Warsaw Pact countries: filled with elaborate catalogs of the “rights of the people” and systematically and brutally ignored in practice.

My point, then, is not (and never was) that poll results should determine the Constitution’s meaning, but rather that we must be conscious that the true source of the Constitution’s (and the judiciary’s) authority is the constitutional language itself combined with congressional enactments and buttressed by a moral consensus among our citizenry. When we take it upon ourselves to invoke the Constitution to reverse a criminal conviction that is in fact supported by overwhelming evidence properly received at trial, we must be firmly convinced that we are following the letter of the constitutional text as well as relevant precedents. When we misapply the controlling law, as I believe the majority does today, we diminish an already shaken public faith in the criminal justice system and in our constitutional order. And it is this public faith that keeps us free.

For these reasons, I dissent from the reversal of the defendant’s firearms conviction.

1 . Brenda Frick, the defendant’s former girlfriend, testified that she accompanied Leicht-nam on several cocaine sale and delivery trips and that Leichtnam kept a handgun in a compartment of the motorcycle he operated from during these drug transactions.

2 . In footnote two of its opinion, the majority argues that the prosecutor’s statement that the indictment did not include the two handguns introduced at trial because "they were sufficiently attenuated from the drug evidence” demonstrates that the evidence presented on the handguns was "distinctly different” from that presented on the rifle. But the prosecutor did not say that the rifle and handgun evidence were “distinctly different”; he said the handguns were “attenuated from the drug evidence.” That the prosecutor, when he was drawing up the indictment, believed he could tie the rifle more closely than the handguns to the drug evidence does not have any bearing on the nature of the firearms evidence presented at trial. In all likelihood, the prosecutor’s statement was based on the fact that the handguns were found in the defendant's bedroom adjoining the closet in which the rifle was discovered along with the drug paraphernalia and not in the closet itself. I fail to see how the prosecutor's statement, much less the record, supports the majority’s view that the rifle and the handguns in the instant case are as different as the sand and steel in Stirone.