United States v. Bradford

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 26, 2002
• Docket: 01-31265
• Status: Unpublished

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.