United States v. Mingo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4437
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEMUEL CORNELIUS MINGO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-14)
Submitted: June 21, 2007 Decided: August 13, 2007
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Robert J. Gleason,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kemuel Cornelius Mingo appeals his convictions on felon-in-
possession, drug possession, and drug trafficking charges. For the
reasons set forth below, we affirm the convictions.
I.
On January 28, 2003, a Charlotte, North Carolina, grand jury
returned a three-count indictment against Mingo. Counts One and
Two charged him with possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (2000), and possession of
cocaine base, in violation of 21 U.S.C. § 841 (2000). Count Three
stated that “Mingo during and in relation to a drug trafficking
crime . . . did, knowingly, willfully and unlawfully use and carry
and in furtherance of such drug trafficking crime, did possess said
firearm” in violation of 18 U.S.C. § 924(c)(1) (2000). J.A. 15.
Count Three did not precisely track the language of the
statute cited, which provides in relevant part: “[A]ny person who,
during and in relation to any crime of violence or drug trafficking
crime . . . , uses or carries a firearm, or who, in furtherance of
any such crime, possesses a fireman, shall . . . be sentenced to a
term of imprisonment of not less than 5 years . . . .” 18 U.S.C.
§ 924(c)(1)(A)(I). Specifically, the statute is worded
disjunctively (any person who uses or carries, or possesses),
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whereas the indictment charged Mingo conjunctively (Mingo did use
and carry and possess).
At trial, the government’s evidence showed that on October 24,
2002, summoned by an informant, Mingo arrived at a Charlotte motel
room to conduct a drug deal with an undercover police officer.
When the police officers hiding in the bathroom emerged with their
guns drawn, Mingo’s initial reaction was to reach for a gun
concealed in the back of his waistband. Abandoning that effort
without touching or drawing the gun, Mingo reached for the door
behind him. He was unable to leave the room quickly, however,
because he had locked the door from the inside when he entered.
The police apprehended Mingo and, in a search incident to his
arrest, recovered from his person both the gun and a sandwich bag
containing twelve individually packaged rocks of crack cocaine.
At the conclusion of the evidence, the district court
instructed the jury. As a part of its instructions on Count One
(felon-in-possession), the court explained that the parties had
stipulated that Mingo is a convicted felon. The court then
instructed the jury on constructive possession by defining the term
as well as the term “actual possession,” and by stating, among
other things, that the jury “may find that the element of
possession as that term is used in these instructions is present if
you find beyond a reasonable doubt the defendant had actual or
constructive possession” of the gun. J.A. 248. The court did not
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clarify whether the constructive possession instruction for Count
One applied to Count Three.
As for Count Three, the court instructed the jury:
[T]he government must prove as to each count the
following essential elements beyond a reasonable doubt.
First, that the defendant committed a drug trafficking
crime for which he may be prosecuted in a court of the
United States. That is possession with intent to
distribute cocaine base. Second, that the defendant used
and carried a firearm during and in relation to the
commission of the drug trafficking crime or possessed the
firearm in furtherance of the drug trafficking crime.
And third, that the defendant did so knowingly.
Now, I want to define the terms on that a little bit
further so if you’ll bear with me. He’s been charged
with using and carrying a firearm during and in relation
to a drug trafficking crime. To sustain a conviction
based on use, the evidence must show beyond a reasonable
doubt active employment of a firearm. The government may
alternatively produce evidence that the firearm was
carried during or in relation to a drug trafficking
crime, but must prove, of course beyond a reasonable
doubt that the firearm was actively carried as charged.
Alternatively, the government may produce evidence beyond
a reasonable doubt that the defendant knowingly possessed
a firearm in furtherance of the drug trafficking crime.
This requires the government to present evidence
indicating that the possession of a firearm furthered or
advanced or helped forward a drug trafficking crime.
J.A. 251-52 (emphases added). Thus, while the indictment charged
Mingo in Count Three conjunctively (Mingo did use and carry and
possess), the district court instructed the jury on Count Three
disjunctively (the evidence must show that Mingo used or carried or
possessed) in accordance with the statute. The verdict sheet
presented to the jury borrowed the language of the indictment with
regard to Count Three: “[Defendant] did . . . use and carry a
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firearm and in furtherance of such drug trafficking crime, did
possess said firearm” in violation of § 924(c). J.A. 279.
The jury returned a verdict of guilty on all three counts.
Mingo appeals, contending that the district court erred in (1) not
limiting its instruction on constructive possession to Count One;
(2) constructively amending the indictment when instructing the
jury on Count Three; and (3) not offering the jury alternative
verdict forms for Count Three.
II.
Because Mingo failed to object to the jury instructions given
or the verdict form provided by the district court at the time of
trial, we review for plain error. See Fed. R. Crim. P. 52(b);
United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998).
Mingo must show that an error occurred, the error was plain, and
the error affected his substantial rights. Hastings, 134 F.3d at
239; see also id. at 240 (explaining that, on plain error review,
the defendant bears the burden of persuasion). Even if Mingo can
make this showing, we will not exercise our discretion in
correcting the error “unless the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”
Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
Constructive amendments of a federal indictment, however, are
error per se. Therefore, should we find error with respect to
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Mingo’s second claim, we will reverse notwithstanding Mingo’s
failure to object at trial. See United States v. Floresca, 38 F.3d
706, 714 (4th Cir. 1994) (en banc). We consider the three errors
Mingo alleges in turn.
A.
Mingo first contends that the district court should have
clarified for the jury that the constructive possession instruction
for the 922(g) offense (felon-in-possession) did not apply to the
924(c) offense (using or carrying a firearm during and in relation
to a drug trafficking crime, or possessing a firearm in furtherance
of such crime). The government responds that the theory of
constructive possession is equally applicable to both offenses,
that there is no reason to believe the jury was confused and needed
a limiting instruction, and that there was no error because the
evidence at trial was of actual possession, not constructive
possession.
Under the theory of constructive possession, evidence may
establish “such a nexus or relationship between the defendant and
[contraband] that it is reasonable to treat the extent of the
defendant’s dominion and control as if it were actual possession.”
United States v. Smith, 407 F.2d 35, 37 (4th Cir. 1969) (citation
and quotation marks omitted). We have not decided in a published
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opinion whether a constructive possession instruction may be given
on a 924(c) charge.1
We do not reach the question because, in determining the
adequacy of jury instructions, we review them “taken as a whole.”
Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994); accord United
States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995) (“This court
reviews jury instructions in their entirety and as part of the
1
Our unpublished opinions have countenanced the use of the
constructive possession theory in order to establish the § 924(c)
offense of possessing a firearm in furtherance of a drug
trafficking crime. See, e.g., United States v. Griffin, 175 Fed.
App’x 627, 628, 630 (4th Cir. 2006); United States v. Milbourne,
129 Fed. App’x 861, 867 n.7 (4th Cir. 2005). Additionally, in
United States v. Kemper, No. 89-5725, 925 F.2d 1458 (Table), 1991
WL 19988, *2 (Feb. 22, 1991), we did not discuss constructive
possession or jury instructions, but we noted that “[p]ossession,
constructive or actual, is necessarily included in a finding that
a defendant used or carried a firearm in relation to his drug
trade” in violation of § 924(c).
At least one circuit has determined that a constructive
possession instruction should not be given on a 924(c) charge of
using or carrying a firearm during and in relation to a drug
trafficking crime. See United States v. Johnson, 216 F.3d 1162,
1164, 1167 (D.C. Cir. 2000); United States v. Green, 254 F.3d 167,
169, 172 (D.C. Cir. 2001).
Several of our sister circuits have held that possession of a
firearm in furtherance of a drug trafficking crime under § 924(c)
may be shown through either constructive or actual possession. See
United States v. Booker, 436 F.3d 238, 241 (D.C. Cir. 2006)
(holding that “possession” for purposes of 924(c) may be either
actual or constructive); United States v. Maldonado-Garcia, 446
F.3d 227, 231 (1st Cir. 2006) (holding that a § 924(c) possession
charge encompasses both actual and constructive possession); United
States v. Lott, 310 F.3d 1231, 1247 (10th Cir. 2002) (holding that
possession under § 924(c) can be shown through either constructive
or actual possession); United States v. Mackey, 265 F.3d 457, 460
(6th Cir. 2001) (allowing defendant to concede constructive
possession of a weapon under § 924(c)).
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whole trial.”). The jury was instructed on actual possession,
defined as physical control over property, see United States v.
Moye, 454 F.3d 390, 395 (4th Cir. 2006), as well as constructive
possession. The evidence at trial was of actual possession, not
constructive possession. The jury heard evidence that a gun was
lodged in Mingo’s waistband, where he reached for it, and that the
police later found the gun on Mingo’s person and recovered it.
Thus, to the extent that the jury found Mingo guilty under § 924(c)
because he “possessed” a gun, there is little doubt that the jury
considered him to have “actually” possessed, or had direct physical
control over, the gun. Regardless of whether the district court’s
constructive possession instruction for the 922(g) offense
impermissibly infected the jury’s consideration of the 924(c)
offense, there is no error where the evidence conformed to an
instruction on actual possession that the jury also received.
Mingo’s claim fails.
B.
Next, Mingo observes that Count Three of the indictment
contained two § 924(c) offenses in a single count, omitted the “or
who” language found in the statute, and used the language “uses and
carries” instead of “uses or carries” as stated in the statute.
Contrary to the indictment, Mingo explains, the district court
instructed the jury that it could convict Mingo based on use of a
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firearm during and in relation to a drug crime, or alternatively,
carrying a firearm during and in relation to a drug crime, or
alternatively, possessing a firearm in furtherance of a drug crime.
The district court’s modifications, Mingo argues, constitute
constructive amendment of the indictment.
1.
We begin with Mingo’s baseline assertion that § 924(c)
criminalizes two separate offenses: (1) using or carrying a firearm
during and in relation to a drug trafficking crime (the “use or
carry” offense) and (2) possessing a firearm in furtherance of a
drug trafficking crime (the “possession” offense). We have not yet
decided, as have other courts, whether § 924(c) defines two
distinct offenses.2 See, e.g., United States v. Savoires, 430 F.3d
376 (6th Cir. 2005); United States v. Combs, 369 F.3d 925 (6th Cir.
2004); United States v. Pleasant, 125 F. Supp. 2d 173, 176 (E. D.
Va. 2000) (“Given their plain meaning, the words of § 924(c)
delineate two quite different, albeit related, proscriptions.”).
Assuming, without deciding, that the statute criminalizes two
distinct offenses, the indictment is duplicitous in that it joins
2
We have merely observed that “the first paragraph [of §
924(c)(1)(A)] contains the elements of the crime——using or carrying
a firearm in relation to or possessing a firearm in furtherance of
drug trafficking,” without noting whether the paragraph lists the
elements of two distinct crimes. United States v. Harris, 243 F.3d
806, 810 (4th Cir. 2001).
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together, with the word “and,” the use or carry offense and the
separate possession offense.3 See United v. Hawkes, 753 F.2d 355,
357 (4th Cir. 1985) (defining duplicity as “the joining in a single
count of two or more distinct and separate offenses”). “As a
general rule, however, when a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive . . . the
verdict stands if the evidence is sufficient with respect to any
one of the acts charged.” Id. (quoting Turner v. United States,
396 U.S. 398, 420 (1970)); accord Griffin v. United States, 502
U.S. 46, 56-57 (1991). In Turner, for example, the indictment
charged the defendant with purchasing, dispensing, and distributing
heroin without revenue stamps attached when the statute at issue
made it unlawful to commit any one of those acts. Applying the
rule stated above, the Supreme Court held that because the evidence
proved that Turner was distributing heroin without revenue stamps
attached, the “status of the case with respect to the other
allegations is irrelevant to the validity of Turner’s conviction.”
Turner, 396 U.S. at 420.
Here, the evidence was plainly sufficient to find that Mingo
committed each of the acts charged in the indictment. The evidence
was sufficient to find that Mingo “carried” the gun during his drug
trafficking crime where, under § 924(c), “to carry” means that the
3
We note that Mingo does not formally challenge his indictment
as duplicitous, although he invokes the concept in making his
argument regarding constructive amendment of the indictment.
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firearm was on the defendant’s person or knowingly possessed and
conveyed in a vehicle. See Muscarello v. United States, 524 U.S.
125, 126-27 (1998). Likewise, given the government’s evidence that
drug dealers carry guns for protection and that Mingo instinctively
reached for his gun when confronted by the police, the jury could
easily conclude that Mingo “possessed” the gun in furtherance of
his drug trafficking crime. See United States v. Lomax, 293 F.3d
701, 705 (4th Cir. 2002) (requiring the government to establish
that “possession of a firearm furthered, advanced, or helped
forward a drug trafficking crime” with evidence, for example, that
the firearm provided the dealer with defense, protection, or a
means of intimidating others); see also id. at 706 (“[A] fact
finder is certainly entitled to come to the common-sense conclusion
that when someone has both drugs and a firearm on their person, the
gun is present to further drug trafficking.”). Finally, the
evidence was sufficient to find that Mingo “used” the gun. “Use”
under § 924(c) requires “active employment,” which includes
“brandishing, displaying, bartering, striking with, and, most
obviously, firing or attempting to fire a firearm.” Bailey v.
United States, 516 U.S. 137, 148 (1995) (emphasis added). At
trial, two police officers testified that they saw the gun in
Mingo’s waistband when he reached behind his back for the gun.
Because, as Bailey explains, a gun is actively employed if
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displayed or “disclosed . . . by the offender,” Mingo, however
briefly, “used” the gun for the purposes of § 924(c). Id. at 149.
Thus, notwithstanding any duplicity in the indictment or the
district court’s charging of the jury in the disjunctive, the
verdict should stand. Accord United States v. Dickey, 102 F.3d
157, 164 n.8 (5th Cir. 1996) (holding that where indictment charged
defendant with carrying and using a firearm in violation of §
924(c) but statute and jury instructions spoke of carrying or using
a firearm, the “discrepancy was not improper” because “a
disjunctive statute may be pleaded conjunctively and proved
disjunctively” (citation omitted)).
2.
This conclusion would normally end our inquiry, but Mingo has
not mounted a duplicity challenge to the indictment or a challenge
to the sufficiency of the evidence. Rather, he asserts that the
district court constructively amended the indictment by
substituting the words “or” and “alternatively” for the
indictment’s use of the word “and.” Turner and Griffin, the two
cases cited above that would ordinarily bar Mingo’s claim, did not
involve an allegation of constructive amendment.
“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 instructions to the
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jury), or both, broadens the possible bases for conviction beyond
those presented by the grand jury.” Floresca, 38 F.3d at 710. We
have referred to constructive amendments of a federal indictment as
fatal variances 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. Randall, 171 F.3d 195, 203 (4th Cir.
1999). Constructive amendments are error per se and, given the
Fifth Amendment right to be indicted by a grand jury, “must be
corrected on appeal even when not preserved by objection.”
Floresca, 38 F.3d at 714.
When considering a constructive amendment claim, “it is the
broadening [of the bases for a defendant’s conviction] that is
important——nothing more.” Floresca, 38 F.3d at 711. As explained
in Floresca, “it matters not,” when a constructive amendment has
occurred, “whether the factfinder could have concluded” that the
defendant was guilty even if the amendment had not occurred. Id.The key inquiry is whether the defendant has been tried on charges
other than those made in the indictment against him.
We find that Mingo was not tried in this manner. The district
court certainly modified the language of the indictment by
instructing the jury to convict if it found that Mingo used or
carried or possessed a firearm, when the indictment charged Mingo
with using and carrying and possessing a firearm. Thus, it would
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seem that the bases for Mingo’s conviction were broadened: the
indictment required the jury to find that Mingo committed all three
acts before issuing a guilty verdict, whereas the jury instructions
required the jury to find that Mingo committed any one of the three
acts before issuing a guilty verdict. But dwelling on this point
would be misguided, for every charge the jury considered (using,
carrying, possessing) was made in the indictment against him.
The cases considering constructive amendments to an indictment
are instructive. In Stirone v. United States, 361 U.S. 212, 218-19
(1960), the Supreme Court held that the defendant was convicted on
a charge the grand jury never made against him when the indictment
charged him only with interference with sand shipments but the jury
instructions stated that his guilt could also rest on interference
with steel shipments. We cited Stirone in Floresca, where the
trial court read the jury the language of subsection b(1) of 18
U.S.C. § 1512(b), which was charged in the indictment, but
immediately thereafter instructed the jury that it could convict if
it found the defendant guilty under subsection b(3), a separate
crime not charged the indictment. We found that the court’s
instruction constructively amended the indictment by broadening the
bases for Floresca’s conviction and allowing the jury to convict
him on a charge not made in the indictment. The court’s
instruction “was more than just a misstatement of the law
applicable to the indicted offense; it stated a distinct,
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unindicted offense.” Floresca, 38 F.3d at 710. Unlike Stirone and
Floresca, where the trial court instructed the jury on an offense
not mentioned in the indictment at all, in the instant case, the
district court instructed the jury on, and only on, offenses
(using, carrying, possessing) expressly mentioned in the
indictment.
Floresca overruled a case, Moore v. United States, 512 F.2d
1255 (4th Cir. 1975), that, as this Court determined in Floresca,
should have resulted in a finding of constructive amendment. Moore
further demonstrates that what happened at Mingo’s trial was not a
constructive amendment of the indictment. In Moore, the indictment
charged the defendant with violating 26 U.S.C. § 5845(d) but the
trial court instructed the jury on § 5845(e). Moore contained a
“clear example[] of constructive amendment” because the defendant
was convicted of a crime (§ 5845(e)) other than that charged in the
indictment (§ 5845(d)). Floresca, 38 F.3d at 711. Mingo’s case is
distinguishable. Mingo was not, for example, indicted for the use
or carry offense yet subjected to jury instructions on the
possession offense. Rather, the jury convicted him of either a use
or carry offense or a possession offense (it is true that we cannot
be sure of which one), both of which were charged in the indictment
(albeit conjunctively). Cf. United States v. Fletcher, 74 F.3d 49,
53 (4th Cir. 1996) (“When a defendant is convicted of charges not
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included in the indictment, an amendment has occurred which is per
se reversible error.”).
Because the district court’s jury instruction did not
impermissibly broaden the bases for Mingo’s conviction by allowing
him to be convicted of a crime not included in the indictment, the
district court did not fatally amend the indictment. Mingo’s claim
fails.
C.
Finally, Mingo contends that the district court erred in not
submitting two verdicts to the jury for Count Three because the
“uses or carries” clause and the “possession in furtherance of a
drug trafficking crime” clause of § 924(c) constitute two distinct
crimes, necessitating an alternative verdict. Mingo apparently
argues that a special verdict form was required so that the jury
could indicate whether it was finding Mingo guilty of the use or
carry offense or the possession offense. The government correctly
notes that Mingo has cited no authority for the proposition that §
924(c) requires a special verdict form.
Addressing this claim would ordinarily require this Court to
decide whether § 924(c) contains two distinct offenses, as
discussed earlier. We need not reach that question because, even
assuming, arguendo, the statute criminalizes two distinct offenses,
there is no requirement in this Circuit that a special verdict form
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be submitted for those offenses. To the contrary, we have allowed
juries to return a general verdict on a count alleging two separate
crimes so long as the defendant is sentenced only on the lesser
crime. See United States v. Quicksey, 525 F.2d 337, 340-41 (4th
Cir. 1975). Here, the statute authorizes a five-year prison
sentence for both a use or carry offense and a possession offense,
and Mingo received five years.
Thus, although it is impossible to ascertain the precise
violation of § 924(c) the jury found Mingo to have committed, a
special verdict form was not required to prevent the district court
from imposing a greater sentence than Mingo warranted under the
law. Finding no error and no prejudice in the district court’s
failure to submit an alternative verdict to the jury, we reject
this claim as well.
III.
For the reasons stated above, we affirm the convictions.
AFFIRMED
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