United States v. Gross

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-31145
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD GROSS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CR-45-ALL
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Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Harold Gross appeals his jury-conviction for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
He argues that in answering a question from the jury, the
district court erred in instructing the jury concerning the
Government’s burden of proof to show beyond a reasonable doubt
that Gross actually or constructively possessed the firearm.
Gross identified one statement by the district court which he
concedes was “technically correct” but argues that it was
“horribly misleading.”
*
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this opinion should not be published and is not precedent except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.
No. 04-31145
-2-
Because Gross did not raise this issue in the district
court, review is limited to plain error. See United States v.
Harris, 104 F.3d 1465, 1471-72 (5th Cir. 1997). Under the plain-
error standard of review, “reversal is not required unless there
is (1) an error; (2) that is clear or plain; (3) that affects the
defendant’s 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). Error in a jury instruction is plain “only when,
considering the entire charge and evidence presented against the
defendant, there is a likelihood of a grave miscarriage of
justice.” United States v. McClatchy, 249 F.3d 348, 357 (5th
Cir. 2001)(internal quotation marks and citation omitted).
The district court gave standard jury instructions
concerning the Government’s burden of proof and the definitions
of actual and constructive possession, as well as sole and joint
possession. As Gross concedes, the district court’s jury
instructions as a whole were correct statements of the law.
Gross has not shown that the district court’s single statement,
even if misleading, constituted plain error as he has not shown
that “there is a likelihood of a grave miscarriage of justice.”
See McClatchy, 249 F.3d at 357 (internal quotation marks and
citation omitted).
AFFIRMED.