United States v. Bradford

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-31265
_____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
KENNON BRADFORD, Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-198
_________________________________________________________________
November 25, 2002
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
PER CURIAM:*
Kennon Bradford (“Bradford”) appeals his conviction as a felon
in possession of a firearm under 18 U.S.C. § 922(g)(1). He argues
that his conviction should be reversed because the district court
erred in (1) disclosing the nature of the underlying felony during
voir dire; (2) allowing evidence that Bradford escaped from prison;
and (3) giving the jury an instruction that “mere presence does not
necessarily establish the proof of a crime.” (Emphasis supplied.)
He also argues, for the first time on appeal, that the indictment
should be dismissed because it was based on allegedly perjured
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
grand jury testimony. Because we find no reversible error, we
affirm the judgment of the district court.
I.
In March 2000, Bradford escaped from a federal prison camp in
Florida. Authorities received information in April 2000 that
Bradford’s girlfriend Karen Barnes (“Barnes”) had rented a silver
Altima automobile in New Orleans and that she and Bradford were
staying in a room rented under her name at the Econo Lodge in
Slidell, Louisiana. Deputy United States Marshals and agents of
the Bureau of Alcohol, Tobacco and Firearms found Bradford and
Barnes in the motel room on April 4, 2000. They arrested Bradford
and obtained consent from Barnes to search the Altima, which was
parked approximately thirty feet from the room. The officer who
searched the car noted that the driver’s seat was pushed all the
way back. When he searched under the driver’s seat, he found a
fully loaded Cobray Mack M-11 .9 millimeter semiautomatic pistol.
The officer questioned Barnes, who claimed she did not know
anything about the gun; she had rented the Altima for Bradford;
Bradford had driven the Altima most recently; and only she and
Bradford had access to the Altima. As a result, Bradford was
charged with being a felon in possession of a firearm. At trial,
Barnes testified against Bradford as did several witnesses, all
associates of Bradford, who testified about Bradford’s control over
the firearm in issue from as early as 1998. A witness who was
imprisoned with Bradford after his arrest in April 2000 testified
that Bradford claimed if he had the gun with him in the hotel room
he would have “held court,” meaning that he would have shot the
arresting officers. Bradford was convicted and appeals alleging
several errors.
II.
Bradford first contends that the district court judge erred in
reading the full indictment to the jury during voir dire. This
court reviews a trial judge’s conduct of voir dire for abuse of
discretion. United States v. Munoz, 150 F.3d 401, 412 (5th Cir.
1998); United States v. Gray, 105 F.3d 956, 962 (5th Cir. 1997).
The government argues that Bradford is entitled only to plain
error review because, although on full notice that the indictment
would be read to the jury, he failed to object. When a defendant
fails to preserve an issue on appeal, we review only for plain
error. Munoz, 150 F.3d at 412. Plain error review requires that
the defendant show “(1) an error; (2) that is clear or plain; (3)
that affects [his] substantial rights; and (4) that seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.
2000). Bradford argues that he was under no obligation to object
before the indictment was read because it was reasonable for him to
believe that the district court would have redacted the portion of
the indictment relating to the nature of his prior conviction. We
need not decide which standard of review applies because,
regardless of the standard of review, there was no error.
Evidence of the nature of a prior felony conviction should be
excluded under Federal Rule of Evidence 403 when the defendant
offers to stipulate to the conviction. Old Chief v. United States,
519 U.S. 172 (1997). This rule applies during voir dire. Munoz,
150 F.3d at 412-13. The record in this case, however, contains no
stipulation before the reading of the indictment at voir dire.
Discussion on this point in the record indicates that defense
counsel discussed the possibility of stipulating various things
during an off-the-record pre-trial conference, but never
definitively made an offer to stipulate that Bradford was a
convicted felon. Because Bradford failed to establish that he made
a timely offer of stipulation, the trial court did not err in
reading the full indictment during voir dire.
Bradford also challenges the admission of evidence that he was
a prison escapee. Bradford claims that the evidence was probative
only of the validity of the arrest warrant, which he did not
challenge, and thus should have been excluded as unfairly
prejudicial under Federal Rule of Evidence 403.
Although Bradford objected to the admission of this evidence
at trial, he did so on the ground that it was not intrinsic
evidence. On appeal he makes quite a different argument; he argues
that whether the evidence is intrinsic or extrinsic, the court
should have applied Rule 403. Absent proper objections, a Rule 403
analysis is not required. See United States v. Navarro, 169 F.3d
228, 233 (5th Cir. 1999); United States v. Coleman, 78 F.3d 154, 156
(5th Cir. 1996). Because Bradford did not object on Rule 403
grounds at trial, we review the admission of this evidence for
plain error. United States v. Reed, 670 F.2d 622, 623 (5th Cir.
1982).
There is no plain error here. The government is correct that
the evidence was intrinsic to the presentation of the offense. The
evidence was probative in establishing that Bradford constructively
possessed the firearm by explaining why the Altima and the hotel
room were rented in his girlfriend’s name; why he needed to arm
himself; and the significance of his jailhouse comments that he
would have “held court” if the gun had been in his physical
possession when law enforcement officers entered the hotel room to
arrest him. The district court did not plainly err in allowing the
government to present evidence that Bradford had escaped from
prison.
Bradford next argues that the instruction given to the jury on
mere presence was erroneous. The court instructed the jury in
part:
...
A person who, although not in actual possession,
knowingly has both the power and the intention, at a
given time, to exercise dominion or control over a thing,
either directly or through another person or persons, is
then in constructive possession of it.
...
Mere presence at the scene of an event does not
necessarily establish the proof of a crime.
Bradford contends that the court erred in including the word
“necessarily” in the mere presence instruction because mere
presence does not, without more, establish guilt. At trial
however, Bradford requested a “mere presence” instruction but his
proposed instruction is not in the record. The specific basis of
Bradford’s objection to the instruction given at trial seems to
have been that the instruction should have contained additional
language from the pattern jury instruction for conspiracy. This
objection and argument does not resemble Bradford’s present
contention that the instruction is an erroneous statement of law
and is inconsistent with the possession instruction. Therefore, he
is entitled to review for plain error only. United States v.
Daniels, 281 F.3d 168, 184 (5th Cir.), cert. denied, 122 S. Ct. 2313
(2002).
The instruction on possession is this court’s pattern
instruction relevant to a § 922(g) charge. 5th Cir. Pattern
Instruc. 2.47, 1.31. The “mere presence” instruction given,
including the word “necessarily”, was taken from this court’s
pattern instruction for conspiracy and has been approved by this
court in the conspiracy context as a correct statement of the law.
United States v. Natel, 812 F.2d 937, 943 (5th Cir. 1987); United
States v. Heffington, 682 F.2d 1075, 1084 (5th Cir. 1982). The
court could have refused to allow a “mere presence” instruction.
See United States v. DeLeon, 170 F.3d 494 (5th Cir. 1999); United
States v. McKnight, 953 F.2d 898 (5th Cir. 1992). However, it is
not erroneous or inconsistent with the law of possession to include
such an instruction. The court gave correct and detailed
instructions on the law of possession which cured any conceivable
confusion caused by the inclusion of the “mere presence”
instruction. See United States v. Vaglica, 720 F.2d 388, 391 (5th
Cir. 1983). Considering the jury instructions as a whole, the
“mere presence” instruction was not plain error.
Finally, Bradford argues that his indictment should have been
dismissed based on Barnes’s allegedly perjured testimony before the
grand jury. Objections based on defects in the indictment are
waived if not raised either before trial or at the earliest
possible opportunity. United States v. Smith, 890 F.2d 711, 715
(5th Cir. 1989); United States v. Cathey, 591 F.2d 268, 271 n.1 (5th
Cir. 1979). Bradford did not raise his perjury theory before the
district court. Therefore, this argument is waived. Furthermore,
his assertion of perjury is not reviewable because the grand jury
transcripts were not made part of the record. United States v.
Johnson, 87 F.3d 133, 136 n.1 (5th Cir. 1996).
In the alternative, Bradford argues that his conviction should
be reversed because the prosecutor failed to seek a continuance and
investigate when Barnes claimed on the eve of trial that she had
given perjured testimony to the grand jury. This argument was not
raised below; therefore, Bradford is entitled to review for plain
error only. United States v. Smith, 203 F.3d 884, 888 (5th Cir.
2000).
Bradford has not shown that Barnes’s grand jury testimony was
actually false or that the prosecutor knew that her testimony was
false. Her grand jury testimony mirrored her statements at the
scene of the arrest and was in part repeated at trial. Because he
cannot show that Barnes’s statements to the grand jury were
actually false, known by the prosecutor to be false, and material,
he has not established error, much less plain error.
The judgment of the district court is
AFFIRMED.