United States v. Tom Jones

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15744 JUNE 16, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00623-CR-2-KOB-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOM JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 16, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Tom Jones appeals his conviction, which was entered pursuant to a jury
verdict finding him guilty of knowingly possessing a firearm after having been
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On appeal, Jones
argues that the district court erred by giving an erroneous supplemental jury
instruction in response to a question posed by the jury during its deliberations.
More specifically, Jones argues that the supplemental instruction misled the jurors
and allowed them to convict him based upon a gun other than the one specified in
the indictment. After careful review, we affirm.
“The district court has broad discretion in formulating a jury charge as long
as the charge as a whole is a correct statement of the law. We will not reverse a
conviction unless we find that issues of law were presented inaccurately or the
charge improperly guided the jury in such a substantial way as to violate due
process.” United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994)
(internal citations omitted). “A challenged supplemental jury instruction is
reviewed as part of the entire jury charge, in light of the indictment, evidence
presented and argument of counsel ‘to determine whether the jury was misled and
whether the jury understood the issues.’” United States v. Johnson, 139 F.3d 1359,
1366 (11th Cir. 1998) (internal citations omitted).
Here, the jury posed the following question: “Can we consider the presence
of the gun in the house where the defendant lives for the purposes of this charge
against the defendant?” After consulting with both parties, the district court
provided the following response: “The jury can consider all of the evidence
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submitted in considering the charges against the defendant, but you must also
follow all of the court’s instructions to you as to the law to apply to the evidence.”
Jones urges that while the government’s case against him focused on a Burgo .22
caliber pistol, the court’s supplemental instruction suggested that the jury could
convict him for possessing one of the other guns that his brother testified were kept
in the house where the brothers lived with their mother. We disagree.
Although Jones’s brother testified that there were several other guns in the
house, the jury asked, “Can we consider the presence of the gun in the
house . . . ?” (emphasis added). There was no testimony connecting Jones to any
other gun in the house he shared with his brother and mother, and his brother
testified that any other guns in the house belonged to others. The indictment
charged Jones with the possession of only the Burgo, and the district court
specifically charged the jury that “the defendant is on trial only for the specific
offense alleged in one count of the indictment.” In short, it is clear that the jury
was asking only about the gun charged in the indictment (the Burgo), while it was
present in the house, and, given the evidence presented and the government’s
theory of the case based exclusively on the Burgo, we cannot conclude that the
supplemental instruction misled the jury. Because the district court’s supplemental
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jury instruction neither misstated the law, nor misled the jury, the court did not
abuse its discretion in giving that instruction.1
AFFIRMED.
1
To the extent Jones asserts the instruction was not specific enough, we likewise are
unpersuaded and affirm. We also reject Jones’s argument that the supplemental instruction
constructively amended the indictment.
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