United States v. Milbourne

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4302
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD MILBOURNE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-03-121-H)
Argued: February 3, 2005 Decided: May 11, 2005
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion.
Judge Traxler wrote a separate opinion concurring in the result.
Judge Shedd wrote a separate concurring opinion.
ARGUED: James Edward Todd, Jr., Research and Writing Specialist,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Christine Witcover Dean, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Frank D. Whitney, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
GREGORY, Circuit Judge:
James Edward Milbourne (“Milbourne”) appeals his conviction
for possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count I); possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count II); and
carrying a firearm during and in relation to the drug trafficking
crime set forth in Count II, and possession of a firearm in
furtherance of that drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count III). On appeal, Milbourne asserts that
the Government violated his Fifth Amendment rights by
constructively amending the indictment, and challenges the
sufficiency of the evidence as to Count III. We affirm his
conviction.
I.
On November 16, 2002, several officers from the Raleigh Police
Department executed a search warrant at the residence of
Milbourne’s girlfriend, Katrina Ross (“Ross”).1 When the officers
arrived, they made a forced entry into the residence and secured
seven adults and two children present in the residence. After
searching Milbourne, an officer found a “nickel” or “dime” bag of
1
Milbourne maintained a separate residence but often stayed
with his girlfriend.
3
marijuana on his person.2 Another officer found a semi-automatic
pistol between the mattress and box spring in Ross’s bedroom. The
officer questioned Milbourne about the gun. After verbally waiving
his Miranda rights, Milbourne admitted that he had previously
purchased the firearm from a man named Zollie Gibson (“Gibson”),
also present in the residence at the time of the search. Milbourne
told the officer that he had only used the gun once, after an
altercation that took place outside of his residence. Milbourne
had been previously convicted of a felony and his right to possess
a gun had not been restored.
The officer also asked Milbourne if he had any contraband in
the residence. Milbourne directed the officer to a jacket in the
closet of Ross’s bedroom that contained bags amounting to 11.5
grams of marijuana.3 Milbourne admitted that he sold “an ounce or
two” per week and made about $175 in weekly profit. During the
search, the officers also found two marijuana cigarette butts, some
marijuana seeds, and plastic baggies.
2
A “nickel” bag contains one (1) gram of marijuana and a
“dime” bag contains two (2) grams. J.A. 78.
3
Milbourne stipulated that this was the amount of marijuana in
the jacket, J.A. 36, however, as indicated by the Assistant United
States Attorney during oral argument, the 11.5 gram calculation
represents the combined amount of the marijuana present on
Milbourne’s person and in the jacket. The jacket contained
approximately 10 grams of marijuana and the remainder was found in
a nickel or dime bag on Milbourne’s person.
4
In addition, the officers found an “eight-ball” of crack
cocaine in the kitchen.4 The testimony at trial indicated that
Gibson had dropped the cocaine just as the officers entered the
residence. Milbourne admitted that Gibson had brought the crack
cocaine over for Milbourne to sell, but stated that he had not
taken possession of the crack cocaine at the time of the search.
Milbourne was not charged with a crime in relation to the crack
cocaine and, at trial, an officer stated that the Government did
not have enough evidence to charge anyone with the cocaine.
After the search, in an effort to cooperate with the police,
Milbourne made a phone call to a drug supplier and ordered an
amount of cocaine. The supplier was unable to make a timely
delivery and the investigation was terminated.
At trial, Milbourne moved for a judgment of acquittal on Count
III, the charge of possession of a firearm in furtherance of the
drug trafficking crime of possession with intent to sell marijuana,
both at the close of the Government’s case and at the close of the
evidence. The district court denied both motions. Milbourne then
filed a motion for acquittal on Count III, which the district court
also denied. The district court sentenced Milbourne to
imprisonment for 120 months on Counts I and II to be served
concurrently, and to 60 months on Count III to be served
4
The “eight-ball” contained approximately 2.8 grams of cocaine
base (crack). J.A. 120-21.
5
consecutively to the sentences on Counts I and II. This appeal
follows.
II.
A. Constructive Amendment of Indictment
Milbourne argues that the Government, in both its presentation
of evidence and argument, relied heavily upon evidence of cocaine
dealing and of drug dealing in general to establish the nexus
between possession of a firearm and drug dealing required by §
924(c). This, he argues, amounted to a constructive amendment of
Count III of the indictment, which charged him with possession of
a firearm in furtherance of the specified predicate drug crime of
possession with intent to distribute marijuana. Issues raised for
the first time on appeal are subject to plain error review. Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725 (1993).
However, “constructive amendments of a federal indictment are error
per se, and under Olano, must be corrected on appeal even when not
preserved by objection.” United States v. Floresca, 38 F.3d 706,
714 (4th Cir. 1994) (en banc).
The Fifth Amendment to the United States Constitution
guarantees that a criminal defendant may only be tried on charges
alleged in an indictment, and “only the grand jury may broaden or
alter the charges in the indictment.” United States v. Randall,
171 F.3d 195, 203 (4th Cir. 1999) (internal quotations and
6
citations omitted). A constructive amendment to an indictment
occurs when: either the government (usually during its
presentation of evidence and/or its argument), the court (usually
through its instruction to the jury), or both, broadens the
possible bases for conviction beyond those presented by the grand
jury. Floresca, 38 F.3d at 710. A constructive amendment is a
“fatal variance” because the indictment is altered “to change the
elements of the offense charged, such that the defendant is
actually convicted of a crime other than that charged in the
indictment.” United States v. Schnabel, 939 F.2d 197, 203 (4th
Cir. 1991).
Not all differences between an indictment and the proof
offered at trial rise to the “fatal” level of a constructive
amendment. Randall, 171 F.3d at 203 (citing United States v. Redd,
161 F.3d 793, 795 (4th Cir. 1998)). When different evidence is
presented at trial but the evidence does not alter the crime
charged in the indictment, a “mere variance” occurs. Id. A mere
variance does not violate a defendant’s constitutional rights
unless it prejudices the defendant either by surprising him at
trial and hindering the preparation of his defense, or by exposing
him to the danger of a second prosecution for the same offense.
Id.Section 924(c)(1)(A) of Title 18, the offense charged in Count
III of Milbourne’s indictment, prohibits a person from using or
7
carrying a firearm “during and in relation to a crime of violence
or drug trafficking crime,” and from possessing a firearm “in
furtherance of such crime.” 18 U.S.C. § 924(c)(1)(A) (2000).
Proof of a predicate offense is an essential element of a § 924(c)
violation. Randall, 171 F.3d at 205. The government does not have
to charge or convict the defendant of a predicate offense
separately, but if it so chooses, “it [is] not allowed through the
presentation of its evidence or its argument, and the district
court [is] not allowed through its jury instructions, to broaden
the bases of conviction to include [a] different § 924(c) predicate
offense.” Id. at 210.
First, we address whether the district court constructively
amended the indictment. The district court’s jury instructions on
Count III of the indictment were as follows:
Count Three, carrying a firearm during a drug
trafficking crime. Count Three of the indictment charges
that on or about November 16, 2002 in the Eastern
District of North Carolina, the defendant Mr. Milbourne,
also known as Junebug, knowingly carried a Beretta .9-
millimeter semiautomatic pistol, during and in relation
to a drug trafficking crime for which he may be
prosecuted in a court of the United States, as set forth
in Count Two, and did possess said firearm in furtherance
of such drug trafficking crime, all in violation of Title
18, United States Code, Section 924(c)(1), another
federal law.
. . .
For you to find Mr. Milbourne guilty of this crime,
you must be convinced that the government has proved each
of the following three elements beyond a reasonable
doubt.
8
First, that the defendant committed the crime
alleged in Count Two. That is, he possessed with intent
to distribute marijuana, and I instruct you that is a
drug trafficking crime. In other words, to consider and
to deliberate Count Three, the possession of a firearm
during or in relation to or furtherance of a drug
trafficking crime, you must have already found the
defendant guilty of Count Two because if you found the
defendant not guilty of Count Two, the drug trafficking
crime, you don’t consider Count Three. . . .
J.A. 243-44 (emphasis added). Thus, the district court judge
specifically instructed the jury that they had to find Milbourne
guilty of the drug trafficking crime alleged in Count II to find
him guilty on Count III, and that this drug trafficking crime was
possession with intent to distribute marijuana. Under this
instruction, the district court judge did not broaden the possible
bases for conviction beyond that presented to the grand jury.
However, as Floresca notes, the government can also
constructively amend the indictment through its presentation of the
evidence and/or its argument. 38 F.3d at 710. Thus, we look to
the Government’s evidence and argument. In the Government’s
opening statement, it described the discovery of both crack cocaine
and marijuana during the search and Milbourne’s admission to the
police that he had been selling marijuana. J.A. 24-25. In its
presentation of the evidence, the Government called Sergeant Craig
Haines (“Haines”), who assisted in the search. Regarding drugs,
the Government questioned Haines about: finding marijuana on
Milbourne’s person, id. at 65; the discovery of marijuana in the
bedroom in Ross’s apartment, id. at 72; the discovery of crack
9
cocaine on the kitchen floor and Milbourne’s statement that Gibson
brought the crack over for him to sell but that he had not taken
possession of it yet, id. at 78; and the failed attempt to have
Milbourne make a controlled purchase of cocaine, id. at 80. The
Government also called a forensic chemist and questioned her about
her testing on the crack cocaine. Id. at 120.
During closing arguments, the Government, while discussing
Count III, mentioned crack cocaine several times. First, after
extensively discussing its proof on the crime of possession with
intent to distribute marijuana, it stated that Gibson, the same man
who Milbourne bought the gun from also brought crack cocaine over
for Milbourne to sell. Id. at 208-09. Second, when discussing why
Gibson had the gun, it stated that the jury could consider the
crack cocaine that Gibson brought over for Milbourne to sell. Id.
at 209-10. Third, in describing the scene in the house, it noted
that Gibson, who had the crack cocaine on his person, threw it down
on the kitchen floor when the police arrived. Id. at 210.
Finally, in its rebuttal argument, it responded to Milbourne’s
attorney’s question to the jury during his closing argument
regarding the Government’s motives in mentioning the crack cocaine,
by stating that it introduced the crack cocaine because it was
probative to show that Milbourne was a drug dealer. Id. at 230.
The Government’s references to crack cocaine are not
substantial enough to broaden the possible bases of conviction to
10
include possession with intent to sell crack cocaine or another
drug trafficking crime involving crack cocaine.5 The Government’s
evidence simply showed that a substance, which the forensic chemist
concluded was crack cocaine, was discovered in the search. Its
opening statement only mentioned that the crack cocaine was
discovered during the search.
The only statement that could possibly be argued to broaden
the base for conviction occurred during the Government’s closing
argument when it mentioned in the context of Count III that the
jury could consider the crack cocaine that Gibson brought over for
Milbourne to sell. This statement could be seen as the Government
arguing to the jury that a nexus exists between the gun and selling
crack cocaine. However, the fairest reading of that statement in
context indicates that the Government was trying to show that
Gibson, the man Milbourne bought the gun from, was a drug supplier
and the gun was thus intended to be used in conjunction with
Milbourne’s drug crimes -- selling marijuana.6 Even if this
statement is read as the former, it is not enough to cause the sort
5
Indeed, testimony was presented that Milbourne never took
possession of the crack cocaine and that the Government did not
charge Milbourne with a crime relating to the crack cocaine because
it did not have enough evidence against him.
6
Further support for such a reading comes from the
Government’s subsequent statements in closing: “You can consider
that the defendant bought the gun from another drug dealer for
$200. Why did he buy that gun from a drug dealer? He couldn’t
have it. Why did he get it from the drug dealer? It was to
further his drug trafficking operation.” J.A. 210.
11
of structural defect in the trial mechanism equal to a constructive
amendment of the indictment. As noted in United States v.
Williams, 106 F.3d 1173 (4th Cir. 1997), a case in which the
defendant similarly argued that a constructive amendment of the
indictment had occurred, “[t]he actions complained of here occurred
wholly within the context of closing argument. It is doubtful at
best if any error occurred under Floresca in this case.” Id. at
1176.
Here, the Government’s closing argument, considered as a
whole, clearly indicated to the jury that Count II, possession with
intent to distribute marijuana, was the predicate offense that it
had to find under § 924(c). Moreover, the district court’s
instructions explicitly stated as much. Thus, no constructive
amendment of the indictment occurred.
B. Sufficiency of the Evidence
Milbourne contends that the district court erred in denying
his motions for judgment of acquittal on the violation of 18 U.S.C.
§ 924(c), in which he argued that insufficient evidence existed to
find beyond a reasonable doubt that he possessed the firearm in
furtherance of his possession with intent to deliver marijuana. In
reviewing the sufficiency of the evidence, this court must
determine whether, construing the evidence in the light most
favorable to the government, any reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. United
12
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The court
must “allow the government the benefit of all reasonable inferences
from the facts proven to those sought to be established” in making
this determination. Id.As discussed, a § 924(c) conviction requires proof beyond a
reasonable doubt that a person: (1) committed a drug crime; and
either (2) used or carried a firearm during and in relation to that
crime; or (3) possessed a firearm in furtherance of that drug
crime. 18 U.S.C. § 924(c)(1)(A) (2000). The “possession in
furtherance” element is at issue here.7 In determining what
evidence is sufficient to establish a violation of § 924(c), the
statutory term “furtherance” should be given its plain meaning of
“‘[t]he act of furthering, advancing, or helping forward.’” United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (quoting
Webster’s II New College Dictionary 454 (1999)). Therefore, “§
924(c) requires the government to present evidence indicating that
the possession of the firearm furthered, advanced, or helped
forward a drug trafficking crime.” Id. Whether the firearm served
such a purpose is a question of fact. Id.
7
Congress added this element to the statute in an apparent
response to the Supreme Court’s decision in Bailey v. United
States, 516 U.S. 137 (1995), which had found that possession of a
firearm was insufficient to sustain a conviction under § 924(c)’s
“use” element. Because the gun was not on Milbourne’s person,
“constructive possession” is at issue here.
13
In Lomax, the court adopted a series of factors set out by the
Fifth Circuit in its decision in United States v. Ceballos-Torres,
218 F.3d 409 (5th Cir. 2000), that might lead a fact finder to
conclude that a connection existed between a defendant’s possession
of a firearm and his drug trafficking crime. Lomax, 203 F.3d at
705. These factors include, but are not limited to: “the type of
drug activity that is being conducted, accessibility of the
firearm, the type of weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the gun
is loaded, proximity to drugs or drug profits, and the time and
circumstances under which the gun is found.” Id. (quoting
Ceballos-Torres, 218 F.3d at 414-15). Clearly, “mere presence” of
a firearm at the scene is not enough to convict. See United States
v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004); United States v.
Mackey, 265 F.3d 457, 462 (6th Cir. 2001); Ceballos-Torres, 218
F.3d at 414.
First, looking to the type of drug-activity being conducted,
a relatively small amount of marijuana, 11.5 grams, was found in
the jacket in Ross’s bedroom. Milbourne told the police that he
only sold one to two ounces of marijuana per week, a statement not
discredited with any testimony at trial. This is a small amount of
drugs in relation to other cases in which courts have found a §
924(c) violation. See Lomax, 293 F.3d at 705 (nineteen hits of
crack found on defendant’s person while he was waiving gun); United
14
States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004) (86.5 grams of
cocaine, 150 lbs. of marijuana); Ceballos-Torres, 218 F.3d at 411
(569.8 grams of cocaine).
Second, looking to the accessibility of the weapon, it was
between the mattress and box spring in Ross’s bedroom. Thus, while
it could be retrieved with little effort, it was not within
immediate reach. Third, the gun was Beretta 9 millimeter
semiautomatic pistol, which is a common type of gun. Fourth,
Milbourne bought the gun from Gibson but no evidence was introduced
as to whether it was stolen. Fifth, Milbourne did possess the gun
illegally because he had been previously convicted of a felony.
Sixth, the gun was loaded.
Seventh, looking to the proximity of the gun to the drugs, the
gun was found in the bed and the drugs were found in the pocket of
a jacket in the closet. Thus, they were in the same room but not
together in the same place or within immediate reach of one
another, although they could be picked up together with little
effort. Finally, looking to the time and circumstances under which
the gun was found, it was found during the execution of the search
warrant and not under circumstances indicating that it was in use
during the middle of a drug transaction.
After taking these factors into consideration, they do not all
point to the gun being used in furtherance of the drug crime. But
they also do not dispel the Government’s theory that it is
15
reasonable that the gun could have been so used.8 Given that it
was in same room, Milbourne could have grabbed it and put it in the
jacket on his way out of the house for a drug sale. Such an
inference is clearly in accord with our holding in Lomax that §
924(c) requires the government to present evidence that the
possession of the firearm furthered, advanced, or helped forward a
drug trafficking crime.9 292 F.3d at 705. In sum, when construing
this evidence in the light most favorable to the Government, as we
must do, a reasonable fact finder could have found beyond a
reasonable doubt that Milbourne’s possession of the gun was in
furtherance of the drug crime.
III.
For the reasons stated herein, we affirm Milbourne’s
conviction.
AFFIRMED
8
Indeed, the court has indicated that the Ceballos-Torres
factors are only a part of our analysis in determining whether a
gun is used in furtherance of a drug crime. See Lomax, 293 F.3d at
705 (noting that the Ceballos-Torres factors may lead a fact finder
to conclude that the necessary nexus between a firearm and a drug
trafficking activity exists but that our analysis is not limited to
these factors alone); see also Krouse, 370 F.3d at 968 (recognizing
limits of factors in certain cases).
9
The district court judge correctly instructed the jury on
this definition of a “possession in furtherance.” J.A. 244-45.
16
TRAXLER, Circuit Judge, concurring in the result:
I fully concur in the majority’s analysis of the constructive
amendment issue, and I concur in result reached by my friends as to
the section 924(c) charge. I write separately, however, because I
believe that the evidence supporting the section 924(c) conviction,
viewed in the light most favorable to the government, easily is
sufficient to support the jury’s verdict.
As we have made clear, section 924(c) “requires the government
to present evidence indicating that the possession of a firearm
furthered, advanced, or helped forward a drug trafficking crime.
However, whether the firearm served such a purpose is ultimately a
factual question.” United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002).
When making this factual determination, the fact finder
is free to consider the numerous ways in which a firearm
might further or advance drug trafficking. For example,
a gun could provide a defense against someone trying to
steal drugs or drug profits, or it might lessen the
chance that a robbery would even be attempted.
Additionally, a gun might enable a drug trafficker to
ensure that he collects during a drug deal. And a gun
could serve as protection in the event that a deal turns
sour. Or it might prevent a transaction from turning
sour in the first place. Furthermore, a firearm could
help a drug trafficker defend his turf by deterring
others from operating in the same area.
Id.In Lomax, this court specified some of the factors that a jury
might rely upon to find that a gun furthered a drug trafficking
crime, such as the nature of the drug activity at issue, the kind
17
of gun, the general accessibility of the gun, and the proximity of
the gun to drugs or drug proceeds. See id. This list of factors,
however, is not exhaustive, and we have never required that any
particular number of them must point towards a connection between
the gun and the crime before a conviction could be sustained.
Applying the Lomax standards to the evidence presented at
trial, I think the evidence was clearly enough to permit the jury
to conclude that Milbourne, an admitted drug dealer, possessed the
gun in furtherance of the drug-trafficking crime alleged in count
two of the indictment. During the search of the apartment, law
enforcement officers found Milbourne’s jacket in the closet of the
master bedroom that Milbourne shared with his girlfriend. In the
pocket of the jacket was a plastic bag that contained numerous
small plastic baggies, each of which contained a small quantity of
marijuana. Under the mattress in that bedroom was a loaded 9-mm
semi-automatic pistol that Milbourne admitted belonged to him and
that he had bought from his drug supplier.* See United States v.
White, 875 F.2d 427, 433 (4th Cir. 1989) (“[I]t is not unreasonable
to recognize that weapons have become tools of the trade in illegal
*
The majority states that the handgun possessed by Milbourne
is a common type of gun, a fact that the majority apparently
believes points away from the conclusion that the gun was possessed
in furtherance of a drug-trafficking crime. Since there is no
evidence in the record about the ubiquity of 9-mm semi-automatic
weapons, I am not certain of the propriety of this observation.
But if such observations are proper in this case, I would note by
belief that Milbourne’s firearm is the weapon of choice among drug
dealers.
18
narcotics operations.” (internal quotation marks omitted)).
Milbourne is a convicted felon, which makes it illegal for him to
possess a pistol, and the loaded gun was easily accessible to
anyone who knew where it was hidden. In my view, this evidence
could easily support a conclusion that Milbourne used the pistol to
protect himself and the drugs he was selling. The government’s
evidence was thus more than enough to support Milbourne’s section
924(c) conviction.
19
SHEDD, Circuit Judge, concurring:
I concur with the result reached by Judge Gregory and with
much of his analysis. However, I believe the issue of the
possession of the firearm “in furtherance of” a federal drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) is not
a close call at all. We have previously recognized that firearms
are tools of the drug trade, see United States v. Ward, 171 F.3d
188, 195 (4th Cir. 1999); United States v. Burgos, 94 F.3d 849, 886
(4th Cir. 1996) (en banc); United States v. White, 875 F.2d 427,
433 (4th Cir. 1989), and that a jury could reasonably conclude that
a firearm kept near the location of drugs is for the personal
protection of a defendant as a drug dealer or for the protection of
his inventory, see United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002).
20