United States v. Jessie Jones, Jr.

108 F.3d 668, 1997 U.S. App. LEXIS 4617, 1997 WL 106310

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 12, 1997
• Docket: 94-5913
• Status: Published

Opinions

BATCHELDER, J., delivered the opinion of the court, in which MERRITT, KENNEDY, NELSON, BOGGS, NORRIS, SUHRHEINRICH, and SILER, JJ., joined. RYAN, J. (pp. 673-77), delivered a separate concurring opinion, in which MARTIN, C.J., JONES, DAUGHTREY, MOORE, and COLE, JJ., joined.

BATCHELDER, Circuit Judge.

Jessie Jones, Jr., appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Supp.1996). A panel of this court vacated the conviction and remanded this case for a new trial. United States v. Jones, 65 F.3d 520, 524 (6th Cir.1995). We granted the government’s petition for a rehearing en banc, United States v. Jones, 73 F.3d 616 (6th Cir.1995), and, for the reasons enumerated below, we AFFIRM Jones’s conviction.

I. FACTS AND PROCEDURAL HISTORY

A federal grand jury indicted Jones for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Supp. 1996). His case proceeded to a jury trial, where he pleaded not guilty. At the commencement of trial, Jones stipulated with the government that he was “a prior convicted felon for the purposes of this trial.”

The district court, prior to opening statements, informed the jury that

the defendant and the government have agreed or stipulated that the defendant is — or was, in fact, a convicted felon at the date alleged in the indictment. The defendant agrees that he was convicted of a felony prior to the date alleged in the indictment, so that element of the case has been proven. So you will consider that— by agreement, that the government has proven that aspect of the ease.

During the course of the trial, Jones testified that he had previously been convicted of seven felonies, and denied that he was contesting his convieted-felon status. He emphasized that his theory of the case was that he never possessed a weapon.

At the conclusion of the evidence, the district court gave the following instruction, which is the focus of this appeal:

The first element you must find beyond a reasonable doubt before you can convict the defendant is that the defendant had been convicted of a felony in a court of the United States or any state prior to the date he is charged with possessing a firearm. To satisfy the first element, you need only find that defendant was, in fact, convicted of a felony and the conviction was prior to the receipt or possession of the firearm charged in this case. Defendant admits that he was convicted of a felony prior to the date alleged in the indictment, so this element of the offense has been proven. Since defendant admits that he was previously convicted of a felony, you will find, that the government has established this element of the offense, and you will proceed to determine if the government has proven the remaining elements of the offense.

(emphasis added). Jones did not object to this instruction at trial. The case was submitted to the jury, which returned a guilty verdict. Jones subsequently filed this timely appeal.

II. ANALYSIS

“This circuit has set a high standard for reversal of a conviction on the grounds of improper instructions.” United States v. Sheffey, 57 F.3d 1419, 1429 (6th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 749,133 L.Ed.2d 697 (1996). Because Jones raised no objection to the instruction at trial, our review is limited to one for plain error. See Fed.R.CRIM.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”); United States v. Sherrod, 33 F.3d 723, 724 (6th Cir.1994).

In United States v. Thomas, 11 F.3d 620 (6th Cir.1993), a panel of this court had occasion to consider thoroughly the Supreme Court’s explication of the elements of a Rule 52(b) analysis. See United States v. Olano, 507 U.S. 725, 731-36, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993). We concluded that our inquiry under Rule 52(b) consists of the following four distinct, though interrelated, analyses: (1) whether an error occurred in the district court; (2) if error occurred, whether the error was plain; (3) if the error was plain, whether the plain error affected substantial rights; and (4) “even if all three factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b), or in other words, we must decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings.” Thomas, 11 F.3d at 630. Additionally, our evaluation of claimed error must be done “in light of the entire trial record.” United States v. Wilkinson, 26 F.3d 623, 625 (6th Cir.1994) (citing United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985)).

A. OCCURRENCE OF ERROR

Jones claims that the instruction to the jury that “you will find that the government has established this element of the offense” was a deviation from the legal rule preventing a directed verdict for the prosecútion. As a general rule, a verdict cannot be directed in favor of the prosecution no matter how strong the evidence against the defendant. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355-56, 51 L.Ed.2d 642 (1977); United States v. Prujansky, 415 F.2d 1045, 1048 (6th Cir.1969). At least three theories, however, have recently been advanced to explain why, in a ease such as this, the district court’s instruction is not error at all. These theories include: (1) waiver, see United States v. Mason, 85 F.3d 471, 472-73 (10th Cir.1996) (holding that since guilty pleas and wholesale waivers of the right to a jury trial do not run afoul of the Sixth Amendment, a defendant can waive constitutional rights on single elements through stipulations; such action does not result in a directed verdict because “the judge has not removed the consideration of an issue from the jury; the parties have”); see also United States v. Jones, 65 F.3d 520, 526 (6th Cir.) (Matia, J., dissenting), vacated and reh’g en banc granted, 73 F.3d 616 (6th Cir.1995). But see United States v. Muse, 83 F.3d 672, 679 (4th Cir.), cert. denied, - U.S. -, 117 S.Ct. 261, 136 L.Ed.2d 186 (1996) (“[Ojnce a defendant pleads not guilty to a crime and elects to proceed before a jury, the district court must instruct, .and the jury must consider, whether the government has proved beyond a reasonable doubt all the elements involved in the crime charged— even if the defendant and the government have entered a stipulation as to certain of those elements.”); (2) a stipulation-exception to the general rule against directed verdicts in criminal eases, see Jones, 65 F.3d at 525 (Matia, J., dissenting) (relying on Prujansky, 415 F.2d at 1048 (acknowledging that proof must be presented and the jury instructed “on all elements of the alleged crime unless the parties otherwise stipulate ”) (emphasis added)). But see Muse, 83 F.3d at 680 (“The government is entitled to have the court inform the jury of the powerful effect of a stipulation but a court cannot direct a verdict, even a partial verdict, against the defendant.”); and, finally, (3) the government’s theory that there is no invasion into the province of the jury because when a defendant affirmatively stipulates to the “ultimate” or “elemental” fact, there is no longer any factual dispute over the existence of that element for the jury to resolve, and therefore, an instruction to the jury to find that the stipulation established the fact is not a directed verdict. See United States v. Gaudin, — U.S..-,-, 115 S.Ct. 2310, 2316, 132 L.Ed.2d 444 (1995) (holding that a jury’s function in a criminal case is ‘“to determine the existence of an element of the crime — that is, an ‘ultimate’ or ‘elemental’ fact — from the existence of one or more ‘evi-dentiary’ or ‘basic’ facts’”) (quoting County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979)); United States v. Benally, 756 F.2d 773, 778 (10th Cir.1985) (holding that an instruction to find an “elemental” fact constitutes a directed verdict when stipulation was only to “evidentiary” fact).

We decline' to decide at this time whether the instruction challenged here was error. Rather we choose to decide the case on narrower grounds, see Ashwander v. TVA 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandéis, J., concurring), and will assume error for purposes of completing the Rule 52(b) analysis.

B. OCCURRENCE OF PLAIN ERROR

Assuming the existence of error for purposes of our analysis, we must next determine whether the error was plain. United States v. Thomas, 11 F.3d 620, 630 (6th Cir.1993) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993)). The term plain “is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Olano, 507 U.S. at 734, 113 S.Ct. at 1777 (citation omitted).

There is only sparse ease law addressing this question, and what little ease law exists is divergent and conflicting. United States v. Mason, 85 F.3d 471, 473-74 (10th Cir.1996); United States v. Muse, 83 F.3d 672, 677-81 (4th Cir.), cert. denied, — U.S. -, 117 , 136 L.Ed.2d 186 (1996). As the Muse court noted, “[w]e have been unable to find much guidance in the case law; indeed, no appellate case seems to have set forth proper language for a jury instruction in the situation at hand.” Muse, 83 F.3d at 680. Against such a legal patchwork, we think that any error in the trial court’s instruction is far from “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777 (“At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.”). We therefore conclude that any such error was not plain error. Absent plain error, Olano and Rule 52(b) prevent us from correcting any error which Jones, by failing to make a timely objection in the district court, forfeited¹ his right to challenge. See Thomas, 11 F.3d at 630 (citing Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78).

C. EfpeCT ON Substantial Rights

Even if we were to assume plain error, Jones cannot prevail. The third prong of our analysis requires us to determine whether the plain error affected Jones’s substantial rights. Id. “[I]n most cases [‘affect substantial rights’] means that the error must have been prejudicial: It must have affected the outcome of the District Court proceedings.” Olano, 507 U.S. at 734, 118 S.Ct. at 1778. The burden of persuasion is on Jones, rather than the government, to make a specific showing of prejudice. Id. at 734-35, 113 S.Ct. at 1777-78 (recognizing, however, that there may perhaps be eases where the defendant is not required to make a specific showing of prejudice).²

Jones wholly fails to make a specific showing of prejudice. Indeed it would be nearly impossible to establish that the “erroneous” instruction affected the outcome of the trial when Jones stipulated to his convicted-felon status, testified about his convictions on the stand, and clearly proceeded at trial on the theory that he was a convicted felon but that he never possessed a firearm. We hold that any error in this case, plain or otherwise, did not affect Jones’s substantial rights by affecting the outcome of the trial. See Fed. R.CRIM.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”); Ola-no, 507 U.S. at 734, 113 S.Ct. at 1777-78.³

D. SeRious Effect on the FajRness, INTEGRITY OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS

“Finally, even if all three [of the above] factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b)_” Thomas, 11 F.3d at 630. The Supreme Court has previously “explained that the discretion conferred by Rule 52(b) should be employed ‘in those circumstances in which a miscarriage of justice would otherwise result.’ ” Olano, 507 U.S. at 736, 113 S.Ct. at 1778-79 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citation omitted)). The Court stated that while in “collateral-review jurisprudence, the term ‘miscarriage of justice’ means that the defendant is actually innocent,” the exercise of remedial discretion under Rule 52(b) is not so strictly limited. Id.

Although courts of appeal should correct errors in eases of actual innocence, we are not constrained to correct errors only in such cases. Id. “Rather, the standard that should guide the exercise of remedial discretion under Rule 52(b)” is whether “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

Even if we were to assume that Jones has shown that the error was plain and that it affected his substantial rights, we would stay our hand in the exercise of our discretionary power in this ease. It is abundantly clear that any error in Jones’s case does not create a circumstance in which a miscarriage of justice would otherwise result. There is absolutely no possibility that Jones is actually innocent of § 922(g)(l)’s eonvictedfelon element. Neither is there a chance that any alleged error in this case seriously affected the fairness, integrity or public reputation of judicial proceedings. Absent the requisite effect, we refrain from exercising our discretionary authority.

III. CONCLUSION

After careful review of the existing case law and. the facts of this case, we find no reversible error. In summary, if there was any error in the district court’s instruction, it was not plain error; if there was plain error, it did not affect Jones’s substantial rights; if there was plain error affecting Jones’s substantial rights, it did not seriously affect the fairness, integrity or public reputation of the judicial proceedings in Jones’s case. Because Jones’s assignment of error fails at nearly every level of analysis, we AFFIRM his conviction.

1 . "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

2 . Jones has not provided us any basis on which to conclude that his is the rare circumstance in which, although he cannot show prejudice, his substantial rights have been otherwise affected.

3 . Indeed, the rule that the panel's original disposition of this case would have established could easily result in greater prejudice to defendants. As the Tenth Circuit observed, there is a danger that the original Jones decision would deprive "defendants ... of the strategic benefit of a sterile stipulation in lieu of stark evidence of both the number and character of prior felony convictions .... This result would [be] far more prejudicial to [defendants] than [an] antiseptic stipulation.” United States v. Mason, 85 F.3d 471, 473 (10th Cir.1996) (citing United States v. Jones, 65 F.3d 520, 526 (6th Cir.) (Mafia, J., dissenting), vacated and reh’g en banc granted, 73 F.3d 616 (6th Cir.1995)).