United States v. Wilkins , 253 F. App'x 538 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0774n.06
Filed: November 1, 2007
No. 05-5567
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF TENNESSEE
)
Alan Wilkins, )
)
Defendant-Appellant.)
BEFORE: MOORE and GRIFFIN, Circuit Judges, and GRAHAM,* District
Judge.
GRAHAM, District Judge. Defendant-appellant Alan Wilkins was
indicted in the Western District of Tennessee on drug and weapons
charges. In an indictment filed on July 30, 2003, defendant was
charged in Count 1 with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), in Count 2 with possession of a
firearm in furtherance of a drug trafficking crime violation of 18
U.S.C. § 924(c), and in Count 3 with possession with the intent to
distribute marijuana in violation of 21 U.S.C. § 841(a)(1). These
offenses were alleged to have occurred on January 1, 2003.
Defendant was also charged with two offenses allegedly committed on
April 3, 2003. Specifically, defendant was charged in Count 4 with
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g), and in Count 5 with being a felon in possession of six
rounds of ammunition in violation of 18 U.S.C. § 922(g).
On May 12, 2004, defendant filed a motion to sever Counts 1,
*
The Honorable James L. Graham, Senior United States District Judge for the
Southern District of Ohio, sitting by designation.
2 and 3 from Counts 4 and 5 for purposes of trial. The motion was
referred to a magistrate judge for a ruling. In a decision filed
on June 8, 2004, the magistrate judge denied the motion for
severance. The magistrate judge concluded that all counts were
properly joined in the same indictment under Fed.R.Crim.P. 8(a) and
that severance of the counts was not warranted under Fed.R.Crim.P.
14(a). Defendant filed an objection to the decision of the
magistrate judge, but the record does not show that the district
court specifically ruled on this objection. A trial on all counts
of the indictment commenced on December 6, 2004, and the defendant
did not renew his request for severance at any time during the
trial.
The testimony presented at trial revealed that on January 1,
2003, Officer Joseph Cunningham of the Memphis, Tennessee, Police
Department was on routine patrol when he observed a white Chevy van
stopped in the middle of eastbound traffic on Brooks Road. The
driver appeared to be trying to talk to a pedestrian on the south
side of the street through the passenger window of the vehicle. JA
59. Officer Cunningham stopped the van. He checked the vehicle
registration and learned that the license plates on the van were
registered to another vehicle. JA 60. He approached the driver’s
window, while Officer Shane Jordan approached the van’s passenger
window. JA 60; 76.
Officer Cunningham questioned the driver of the van,
identified as the defendant, and learned that defendant did not
have a valid driver’s license. JA 61. Defendant was arrested and
placed in the back seat of Officer Cunningham’s squad car. JA 61.
Officer Cunningham testified that defendant admitted to having a
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gun in the van, and that defendant consented to the search of the
vehicle. JA 62. During the search, the officers recovered a nine-
millimeter pistol from the center console of the van. They also
found spent rounds on the floor board by the driver’s seat, and 1.7
pounds of marijuana, packaged in two large freezer bags, located
between the second and third rows of seats. JA 64-65; 78-79; 82;
195.
The evidence at trial further revealed that on April 3, 2003,
Memphis police officers responded to a 911 emergency call made by
defendant’s wife, Lisa Wilkins. Mrs. Wilkins told Officer Erskin
Caldwell that defendant had shot the tires of her vehicle. JA 131.
The officers observed a vehicle with three flat tires, and
recovered six .45 caliber shell casings from the ground around the
vehicle. JA 132. The defendant then arrived at the scene and
stated, “The bitch knocked on my door and I shot her tires out
because every time the police are called, she is not here.” JA
133-34; 147. Defendant also told the officers that the gun was
located on the top shelf of a bedroom closet in an apartment
located at 3496 Mediterranean, where he sometimes stayed with his
girlfriend, Jolene Helm, when estranged from his wife. JA 134-36,
248. The police went to the apartment and were admitted by a woman
who showed them the location of the pistol. JA 143-44. The
officers retrieved a .45 caliber Llama-Max-1 handgun, magazine clip
and holster from a closet in the apartment. JA 134-36; 140.
As part of its case in chief, the government called Officer
Moore, the supervisor of the Communications Bureau of the Memphis
Police Department, to authenticate the audio tape of the 911 call
made by Lisa Wilkins. JA 125.
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The government also presented the testimony of Brian Weaks, a
special agent with the Bureau of Alcohol, Tobacco, Firearms and
Explosives. Agent Weaks testified that while serving a grand jury
subpoena on Helm, he left business cards in the neighborhood asking
anyone with information concerning Helm’s whereabouts to contact
him. JA 208-09. Agent Weaks testified that he received a message
that someone identifying himself as Alan Wilkins had called and
stated that someone was looking for his girlfriend. JA 209. Agent
Weaks called the phone number provided and explained that he had a
grand jury subpoena to serve on Ms. Helm. The man then asked, “Is
this about when I shot all those tires out?” JA 209.
Lisa Wilkins testified that she had no recollection of the
shooting on April 3, 2003. JA 153. She agreed that prior to
trial, she had informed the prosecutor that there was a ninety-nine
percent chance that her voice was captured on the tape. However,
she further testified at trial that although it was possible that
the recorded voice was hers, it might not be. JA 170-71. Mrs.
Wilkins also testified concerning her activities on January 1,
2003. She claimed that she purchased the firearm recovered from
the van, that she placed the firearm in the van for her protection,
and that she accidentally left the firearm in the vehicle when the
van had ignition problems. JA 171-75.
Defendant stipulated to his felon status at trial and admitted
the possession of marijuana charge. JA 56; 236-37; 276. He also
testified that he recognized his wife’s voice on the 911 tape. JA
268. He denied knowing that the nine-millimeter handgun was in the
van prior to its discovery by the police. JA 237-39. He also
denied having a weapon at the time his wife’s tires were shot on
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April 3, 2003, and stated that his son had a gun. JA 250.
The jury returned a verdict of guilty on all counts. The
district court imposed a sentence of seventy months on Count 1,
sixty months on Count 3, and seventy-one months on Counts 4 and 5,
to run concurrently, and a sentence of sixty months on Count 2, to
run consecutively to the other counts, resulting in a total
sentence of one hundred and thirty-one months. Defendant now
pursues the instant appeal.
I.
Defendant first argues that Counts 1, 2 and 3 were not
properly joined in the same indictment with Counts 4 and 5, thereby
violating Fed.R.Crim.P. 8(a). That rule provides:
The indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses
charged–whether felonies or misdemeanors or both–are of
the same or similar character, or are based on the same
act or transaction, or are connected with or constitute
parts of a common scheme or plan.
Rule 8(a). This court has held that Rule 8(a) should be construed
in favor of joinder, although the failure to meet the requirements
of the rule constitutes misjoinder as a matter of law. United
States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002). “Whether
joinder was proper under Rule 8(a) is determined by the allegations
on the face of the indictment.” Id.
Defendant correctly argues that the offenses in Counts 1
through 3, allegedly committed on January 1, 2003, were not a part
of the same act or transaction as the offenses in Counts 4 and 5
which were allegedly committed on April 3, 2003. There is also no
language in the indictment which indicates that the offenses
committed on January 1, 2003, were “connected with or constitute
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parts of a common scheme or plan.” Rule 8(a). However, Counts 1,
4 and 5 are offenses “of the same or similar character[.]” Rule
8(a). Both Count 1 and Count 4 charged the defendant with being a
felon in possession of a firearm in violation of 18 U.S.C. §
922(g), and Count 5 charged the defendant with being a felon in
possession of six rounds of ammunition in violation of 18 U.S.C. §
922(g). We therefore conclude that the joinder of Counts 4 and 5
with Count 1 in the same indictment was proper. Counts 2 and 3
were a part of the same act or transaction as Count 1, and thus
those counts were also properly joined in the same indictment with
Counts 1, 4 and 5.
Defendant also argues that the district court should have
severed Counts 1, 2 and 3 from Counts 4 and 5 for a separate trial
pursuant to Fed.R.Crim.P. 14. Rule 14 permits a defendant to move
for severance in situations in which joinder of multiple offenses,
although proper under Rule 8, would be prejudicial to the
defendant. Zafiro v. United States, 506 U.S. 534, 538 (1993).
However, a Rule 14 motion must be renewed at the close of the
evidence or it is waived. United States v. Harris, 293 F.3d 970,
975 (6th Cir. 2002)(citing United States v. Hudson, 53 F.3d 744, 747
(6th Cir. 1995)). Since defendant did not renew his motion for
severance at the close of evidence, we find that the defendant has
failed to preserve this issue for appeal.
II.
Defendant’s next claim of error challenges the decision of the
district court to permit the government to play the tape of Mrs.
Wilkins’ 911 call relating to the April 3, 2003, offenses during
the testimony of Officer Moore, who was called as a witness to
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authenticate the tape. After the tape was played, defense counsel
moved to strike the tape on the basis that it contained unsworn
statements. JA 125. Counsel also argued that the statements on
the tape might be inconsistent with Mrs. Wilkins’ testimony,
thereby confusing to the jury, but he conceded that the tape might
be admissible to impeach Mrs. Wilkins after she testified. JA 125-
26. The trial court permitted the tape to be played on the grounds
that it constituted self-authenticating evidence of the call. JA
126. The government later called Mrs. Wilkins as a witness, and
during her direct examination, the trial court granted the
government’s request to question her as a hostile witness. JA 164.
The 911 tape was played during her testimony, and she was
questioned as to whether it was her voice on the tape. JA 165-71.
She testified that it was possible that her voice was on the tape,
but that it might be or might not be, despite her earlier statement
to counsel on Friday of the previous week that she was ninety-nine
percent sure that the voice was hers. JA 164, 171. Defense
counsel did not object to the playing of the tape during Mrs.
Wilkins’ testimony, and defendant does not contend that the playing
of the tape during her testimony was error. Rather, he argues that
he was prejudiced by the earlier playing of the tape, which
resulted in the jury hearing the tape twice.
This court reviews the district court’s evidentiary rulings
for abuse of discretion. United States v. Henley, 360 F.3d 509,
518 (6th Cir. 2004). Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice. Fed.R.Evid. 403. However, the district court has broad
discretion in balancing probative value against potential
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prejudicial impact. United States v. Layne, 192 F.3d 556, 573 (6th
Cir. 1999). Even when there is an abuse of discretion, that error
is harmless “unless it is more probable than not that the error
materially affected the verdict.” United States v. Martin, 897
F.2d 1368, 1372 (6th Cir. 1990).
Playing the tape permitted Officer Moore to verify that this
particular call had been made and was in fact received by the
Communications Bureau at the date and time in question. The
playing of the tape also provided background information as to why
Officer Caldwell was dispatched to the scene. The tape contained
relevant and probative evidence. See United States v. Lloyd, 462
F.3d 510, 516 (6th Cir. 2006)(911 tape of statements by bank
employees concerning the robber was relevant and probative
evidence.) Although defense counsel argued before the trial court
that the tape contained unsworn statements, he describes Mrs.
Wilkins’ statements as being “hysterical, frantic and desperate.”
Defendant’s Brief, p. 14. Thus, the statements arguably fell
within the hearsay exception for excited utterances under
Fed.R.Crim.P. 803(2), and were admissible as evidence.
Defense counsel argued below that the government was
attempting to impeach Mrs. Wilkins before she testified. However,
there is no evidence that the prosecutor knew prior to Mrs.
Wilkins’ testimony at trial that she would refuse to admit to
making the statements on the tape, particularly since she basically
told him the Friday before trial that the voice on the tape was
hers. The tape contained relevant evidence independent of any
impeachment value, and it did not become impeaching evidence until
after Mrs. Wilkins testified. The playing of the tape was a valid
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means of assisting the jury in determining whether Mrs. Wilkins in
fact made the 911 call. Although defendant speculates that the
fact that the jury heard the tape twice had an impact on the jury’s
weighing of Mrs. Wilkins’ credibility, there is no reason to
conclude that playing the tape twice caused the jurors to discredit
her testimony any more than they would have if they had only heard
the tape once.
Defendant further contends that it was prejudicial for the
jury to twice hear the “hysterical, frantic and desperate” voice on
the tape. However, the presence of emotion in the voice on the
tape was relevant to assist the jury in determining whether Mrs.
Wilkins was telling the truth on the stand. The mere fact that the
voice on the tape was hysterical is not sufficient to show unfair
prejudice. See Lloyd, 462 F.3d at 517 (emotions of robbery victims
evidenced in voices on tape insufficient to create danger of unfair
prejudice).
Even assuming that there was any error in the first playing of
the tape, that error was harmless. There was ample evidence to
support defendant’s conviction for his possession of a weapon and
ammunition on April 3, 2003. Defendant himself admitted that the
voice on the tape was that of his wife. JA 268. There is evidence
that defendant told Officer Caldwell at the scene that “I shot her
tires out because every time the police are called, she is not
here.” JA 133-34; 147. Agent Weaks testified that when he talked
to an individual who identified himself as the defendant, the man
asked, “Is this about when I shot all those tires out?” JA 209.
Defendant has failed to show prejudice resulting from the playing
of the 911 tape during Officer Moore’s testimony, and this claim of
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error is without merit.
III.
Defendant also argues that the district court failed to give
adequate instructions on how to consider the multiple counts
alleged in the indictment. The record does not disclose any
objection by defendant to the instructions given by the court.
Where a defendant fails to object to the jury instructions at
trial, we review for plain error only. United States v. Newsom,
452 F.3d 593, 605 (6th Cir. 2006); Fed.R.Crim.P. 30(d)(“Failure to
object [to jury instructions] in accordance with this rule
precludes appellate review, except [for plain error] under Rule
52(b).”). “Plain error requires a finding that, taken as a whole,
the jury instructions were so clearly erroneous as to likely
produce a grave miscarriage of justice.” United States v. Combs,
33 F.3d 667, 669 (6th Cir. 1994)(quoting United States v. Piccolo,
723 F.2d 1234, 1241 (6th Cir. 1983)).
In reviewing for plain error, we must determine whether (1)
there was an error in the district court, (2) the error is plain,
(3) the plain error affected the defendant’s substantial rights,
and (4) such error seriously affects the fairness, integrity or
public reputation of judicial proceedings. United States v.
Thomas, 11 F.3d 620, 629-30 (6th Cir. 1993).
In this case, the district court instructed the jury as
follows:
The defendant has been charged with five separate crimes.
The number of charges is no evidence of guilt. It is
your duty to separately consider the evidence that
relates to each charge, and to return a separate verdict
for each one. For each charge, you must decide whether
the government has presented proof beyond a reasonable
doubt that the defendant is guilty of that particular
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charge.
Your decision on one charge, whether it is guilty or not
guilty, should not influence your decision on any of the
other charges.
JA 314-15. This instruction is almost identical to those upheld by
this court in United States v. Cody, 498 F.3d 582 (6th Cir. 2007),
and Chavez, 296 F.3d at 462, as being sufficient to caution the
jurors concerning their consideration of multiple counts and to
render harmless any error in the joinder of counts. The reasoning
in Cody and Chavez is even more compelling in this case in light of
our holding above that the counts in defendant’s indictment were
properly joined under Rule 8(a). We presume that the jury followed
the trial court’s instruction. Chavez, 296 F.3d at 462. This case
involved only two incidents, the evidence presented was not
complicated or confusing, and the jury was capable of considering
each count separately in determining whether the government had met
its burden or proof. No error, plain or otherwise, occurred in the
district court’s instructions to the jury concerning the manner of
deliberation on multiple counts.
IV.
Prior to oral argument, the parties were given the opportunity
to brief the issue, raised sua sponte by this court, of whether we
should recognize plain error in the wording of Count 2 of the
indictment and the jury instructions given by the district court on
that count. Defendant raised no objection in the district court or
on appeal concerning the wording of Count 2 or the jury
instructions on that count. However, “this Court has discretion to
correct plain errors affecting important rights of criminal
defendants, even when not raised on appeal.” United States v.
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Graham, 275 F.3d 490, 521 (6th Cir. 2001). See also United States
v. Pugh, 405 F.3d 390, 401-02 (6th Cir. 2005)(Fed.R.Crim.P. 52(b)
permits a court of appeals, at its discretion, to address issues
under plain error analysis sua sponte).
We find that the defendant waived any technical error in the
indictment by failing to challenge the defect in a motion made
before trial pursuant to Fed.R.Crim.P. 12(b)(3)(B). See United
States v. Kakos, 483 F.3d 441, 444 (6th Cir. 2007). However,
defendant’s failure to object to the indictment does not preclude
review by this court to ascertain whether any harm to defendant’s
substantive rights stemmed from an error in the indictment, such as
harm caused by erroneous jury instructions. Id. at 444-45 (citing
United States v. Adesida, 129 F.3d 846, 849 (6th Cir. 1997)). We
conclude that it is appropriate to exercise our discretion to
review the jury instructions on Count 2 of the indictment. Since
defendant raised no objection to the court’s charge on Count 2, his
conviction on that count may be overturned only if there was plain
error in the charge which affected his substantial rights. Lloyd,
462 F.3d at 514.
Count 2 purports to charge the defendant with an offense under
18 U.S.C. § 942(c)(1)(A). That section provides that “any 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 firearm” shall be
subject to an additional consecutive term of incarceration. 18
U.S.C. § 924(c)(1)(A). This court held in United States v. Combs,
369 F.3d 925, 933 (6th Cir. 2004), that § 924(c)(1)(A) criminalizes
two separate and distinct offenses: (1) using or carrying a firearm
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during and in relation to any crime of violence or drug trafficking
crime; and (2) possessing a firearm in furtherance of any such
crime. The proofs required for each offense are distinct. Id. at
930-32.
For purposes of the use or carry offense, the “use” of a
firearm connotes more than mere possession of the firearm, and
requires some active employment of the firearm by the person
committing the drug offense. Combs, 369 F.3d at 932. The term
“carry” means that the firearm must be on the person or
accompanying the person, such as conveying the firearm in a motor
vehicle. Id. To “carry” a firearm, the defendant must physically
transport the firearm, but the firearm need not be immediately
available for use. Id. at 933. The “during and in relation to”
element requires that the firearm “furthered the purpose or effect
of the crime and that its presence or involvement was not the
result of coincidence.” United States v. Warwick, 167 F.3d 965,
971 (6th Cir. 1999).
In contrast, the “in furtherance of” element of the possession
offense requires a higher standard of participation by the
defendant than the “during and in relation to” element of the use
or carry offense. United States v. Mackey, 265 F.3d 457, 461 (6th
Cir. 2001). The government must show that the firearm was
possessed to advance or promote the commission of the underlying
drug trafficking offense, and that there was “a specific nexus
between the gun and the crime charged.” Id. at 462. The
possession charge does not require that the defendant actively
employ or physically transport the firearm; rather, it is
sufficient if the firearm is strategically located for quick and
13
ease of use. Id.
Count 2 reads as follows:
On or about January 1, 2003, in the Western District of
Tennessee, the defendant, ALAN WILKINS[,] during, in
relation to and in furtherance of a drug trafficking
crime, did unlawfully, knowingly and intentionally
possess a firearm, to wit: an EAA (Tanfoglio) model:
Witness, 9mm pistol, in violation of Title 18, United
States Code, Section 924(c).
Count 2 contains all of the elements of the possession
offense, but also includes the language “during, in relation to”
applicable to the use or carry offense. Count 2 is sufficient to
charge a possession offense. See United States v. Cobbs, 233
Fed.App’x 524, 532-33 (6th Cir. 2007). However, since that count
contains no allegations that the defendant used or carried a
firearm, Count 2 does not charge a use or carry offense under §
924(c), and the language “during, in relation to” is potentially
confusing surplusage.
When a count charging one type of offense under § 924(c)(1)(A)
also contains some or all of the elements of the other type of
offense under § 924(c), a danger arises that the jury will convict
the defendant on an offense not charged in the indictment, or that
the jury may reach a non-unanimous decision. See United States v.
Savoires, 430 F.3d 376, 380 (6th Cir. 2005); Combs, 369 F.3d at 934-
36. When a § 924(c) count contains language relating to more than
one offense, jury instructions can alleviate any prejudice to the
defendant. See Cobbs, 233 Fed.App’x at 533 (affirming conviction
on possession charge where surplus “during and in relation to”
language in the indictment was not included in the jury
instructions and the trial court instructed solely on the
possession offense); Lloyd, 462 F.3d at 514 (noting that “proper
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jury instructions can mitigate the risk of jury confusion[.]”);
United States v. Davis, 306 F.3d 398, 416 (6th Cir. 2002)(no
prejudice where jury instructions only charged on use and carry
offense). Thus, we must examine the charge in this case to
determine if plain error occurred.
In instructing the jury, the district court read Count 2 as it
was written in the indictment to the jury. Tr. 19-20. The court
later stated, “In Count 2, the defendant is charged with possession
of a firearm in furtherance of a drug trafficking crime.” Tr. 27.
However, when instructing the jury on the applicable statute, the
court read only the part of the statute relevant to the use and
carry offense, stating, “Any person who, during and in relation to
any crime of violence or drug trafficking crime for which the
person may be prosecuted in a court of the United States, uses or
carries a firearm, shall be guilty of a crime.” Tr. 27.
Compounding this error, the district court then stated, “Under
Count 2, the defendant is charged with using or carrying a firearm
during the commission of the drug trafficking crime which is
charged in Count 3.” Tr. 27.
The district court also referred to both § 924 offenses in
defining the elements of Count 2. The court described the second
element as being “that the defendant knowingly carried a firearm
during and in relation to the commission of, or knowingly possessed
a firearm in the furtherance of, the crime charged in Count 2.”
Tr. 28. The court then stated, “The second element the government
must prove beyond a reasonable doubt is that the defendant
knowingly possessed a firearm in furtherance of the commission of
the crime charged in Count 3.” Tr. 28. The court then proceeded
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to define the terms “possession” and “possess a firearm in
furtherance of the crime.” Tr. 29. Thus, the instructions mixed
the elements of the use or carry offense with those of the
possession offense. This constituted error, as well as plain
error. See Savoires, 430 F.3d at 381.
The government argues that the error was not prejudicial,
noting that the district court did give a correct charge on the
elements of the possession offense, and did not specifically define
the elements “use,” “carry,” or “during or in relation to.”
However, the fact that the charge included a correct definition of
the possession offense does not alter the fact that it also
contained extraneous and contradictory language relating to the use
or carry offense. Further, the fact that the court did not
specifically define the terms “use,” “carry,” or “during or in
relation to” actually heightened rather than diminished the risk of
prejudice. Those terms have specific meanings in the context of a
§ 924(c) offense, and the failure to define those terms makes it
more likely that the jurors simply used the common, everyday
meaning of those terms in considering the evidence rather than
their more specific meanings. In addition, the facts of this case
are such that the jury could have found that the defendant carried
a firearm during and in relation to his marijuana offense while
concluding that the government had failed to meet the higher
standard of possessing the firearm “in furtherance of” that drug
offense.
Since the court’s instructions mixed the elements of the two
offenses and potentially authorized a conviction for an offense
which was not charged in the indictment, the error affected
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defendant’s substantial rights. See Savoires, 430 F.3d at 380-81
(instructions on possession charge which included elements of use
offense authorized conviction for non-existent offense); Combs, 369
F.3d at 935-36 (intermixing elements of both offenses created risk
that defendant was ultimately convicted for use offense instead of
possession offense for which he was indicted). This error
undermined the fairness of defendant’s trial, see Savoires, 430
F.3d at 381, and affected the integrity of the judicial
proceedings. United States v. Lowe, 172 Fed.App’x 91, 96-7 (6th
Cir. 2006). Defendant’s conviction on Count 2 resulted in the
addition of sixty months to his total sentence of incarceration.
We conclude that plain error occurred in the court’s charge on
Count 2, and that defendant’s conviction on Count 2 must be
reversed.
V.
For the foregoing reasons, we affirm defendant’s convictions
on Counts 1, 3, 4, and 5 of the indictment. We reverse the
defendant’s conviction on Count 2, and remand this case to the
district court for further proceedings consistent with this
opinion.
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