United States v. Kevin Thomas Ford

872 F.2d 1231, 1989 U.S. App. LEXIS 4693, 1989 WL 32432
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 10, 1989
Docket88-3603
StatusPublished
Cited by137 cases

This text of 872 F.2d 1231 (United States v. Kevin Thomas Ford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kevin Thomas Ford, 872 F.2d 1231, 1989 U.S. App. LEXIS 4693, 1989 WL 32432 (6th Cir. 1989).

Opinions

BAILEY BROWN, Senior Circuit Judge.

Ford appeals his jury convictions on charges of using false identification and making a false statement in connection with the purchase of a firearm (Count I), of providing false identification in a transaction that affected interstate commerce (Count II), and of possessing a firearm after having been convicted of a felony and of having three previous violent felony convictions (Count III). Because we hold that the evidence introduced at trial and the district judge’s instruction constructively amended the charge contained in Count III of the grand jury’s indictment, we reverse Ford’s conviction on Count III, but we affirm the other convictions.

Statement of the Case

On November 2, 1986, a man identifying himself as “Andre J. Small” purchased a revolver from the Powder Room, a gun shop in Powell, Ohio. “Small” used an Ohio driver’s license in that name for identification and signed a statement denying that he had a felony conviction in a firearms registration form.

On August 9, 1987, while driving near Columbus, Ohio, Ford shot himself in the hand. A friend of Ford, Nathaniel Edwards, who had been driving in tandem with Ford, noticed that Ford had pulled into a parking lot and parked. Edwards followed Ford into the lot and witnessed Ford’s hand bleeding. Ford then gave Ed[1233]*1233wards the gun with which he had shot himself, and the two proceeded to a nearby police station where Ford told the police that he had been shot by another motorist. After arriving at the police station, Ford was taken to a hospital while his car remained at the station. It was decided by the investigating officers that the vehicle would be impounded. Pursuant to police procedure the vehicle was subjected to an inventory search before impoundment. During the course of the search an Ohio driver’s license bearing Ford’s picture but in the name of “Andre J. Small” and a checkbook in the name of “Andre J. Small” were found in a pocket of Ford’s jacket which was hanging behind the driver’s seat. Edwards took the gun and returned it to Ford’s wife several days after this incident.

On September 28, 1987, Ford’s wife, Cathy, reported to the Columbus police that Ford had a gun and was threatening to kill her. When the police arrived, they arrested and searched Ford but did not find a gun on his person. A gun was found, however, in the upstairs bathroom. It was apparently the same gun that had been purchased on November 2, 1986 in Powell, Ohio.

Ford, prior to November 2, 1986, had been convicted of six felonies, five of which were violent felonies.

The grand jury indictment charged Ford with, on November 2, 1986, making a false statement denying any prior felony convictions, alleging that Ford had two violent and one nonviolent criminal convictions, and with using false identification in connection with the purchase of a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(1) (Count I); with producing a false Ohio driver’s license on November 2, 1986 in a transaction affecting commerce in violation of 18 U.S.C. § 1028(a)(1) and (c)(3) (Count II); and with possessing a firearm “[o]n or about September 28, 1987” after having previously been convicted of a felony1 and, to support additional punishment under § 924(e)(1), of having at least three previous violent felony convictions,2 in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(1) and (e)(1) (Count III).

Prior to trial, Ford made a motion in limine to prevent the introduction of evidence of more than one prior felony conviction. His contention was that the three violent crimes required to be proved under § 924(e)(1) were not ingredients of the crime charged and would only be a basis for augmenting the penalty and that, therefore, proof of them was not admissible until after conviction to augment the penalty. Ford further contended that the prosecution should be limited at trial to proving only one of the felonies that was alleged in both Count I and Count III. The motion was denied and, as stated, at trial the government introduced evidence of six felony convictions, five of which were violent. Ford again objected to this evidence at trial and was overruled.

Since Count III of the indictment charged possession “[o]n or about September 28, 1987,” the district judge instructed the jury in the general charge that it was sufficient for purposes of a conviction on that count to find that Ford had possessed a gun on a date reasonably near September 28, 1987. During deliberations, the jury asked the judge a question which counsel agreed was intended to ascertain whether they could find Ford guilty on Count III if they believed that he had possessed a gun on August 9,1987. The judge then further instructed the jury that the critical factor was a finding of possession after Ford had been convicted of a felony, and charged that, in substance, the time frame could include any date from November 1986 (the alleged purchase date) through September 1987 (the alleged possession and domestic violence date).

The jury returned convictions on all three counts and Ford was sentenced to 20 years [1234]*1234without parole on Count III and to concurrent five-year sentences on Counts I and II. Ford appeals his convictions on all three counts contending (1) as to the possession charge in Count III, that the district judge’s instruction with respect to the dates of possession of a firearm improperly diverged from the date alleged in the indictment and therefore constituted reversible error, (2) as to all counts, that the introduction of evidence of six prior felony convictions constituted prejudicial and reversible error, and (3) as to all counts, that the search of Ford’s jacket during the legitimate inventory search of his automobile was impermissibly broad in scope and that it was, therefore, error to admit the evidence so obtained.

Amendment of the Indictment

Ford argues that the district judge’s supplemental jury instruction improperly amended the charge contained in Count III of the indictment and that this modification warrants reversal of his conviction on that count. In Count III of the indictment the grand jury charged:

On or about September 28,1987, in the Southern District of Ohio, KEVIN THOMAS FORD, did unlawfully possess affecting commerce a firearm, that is a Smith and Wesson, Model 60, .38 special caliber revolver, having been convicted of a crime punishable by imprisonment for a term exceeding one year and having at least three previous convictions which constitute violent felonies....

Count III then charged five specific convictions of violent crimes.

The district judge’s general instructions to the jury included a standard instruction as to the jury’s proper consideration of the “on or about” language contained in the indictment:

[I]t is not necessary that the government prove beyond a reasonable doubt that the acts alleged were committed on the exact date named in the indictment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Deaunta Belcher
92 F.4th 643 (Sixth Circuit, 2024)
United States v. Mark Brown
Sixth Circuit, 2018
United States v. Nael Sammour
816 F.3d 1328 (Eleventh Circuit, 2016)
United States v. Joshua Roberts
603 F. App'x 426 (Sixth Circuit, 2015)
United States v. Tommy Holmes
603 F. App'x 383 (Sixth Circuit, 2015)
United States v. Bastian
Second Circuit, 2014
United States v. $72,050.00 in United States Currency
587 F. App'x 241 (Sixth Circuit, 2014)
United States v. Lesley Owens
458 F. App'x 444 (Sixth Circuit, 2012)
United States v. Antonio Gaines
449 F. App'x 498 (Sixth Circuit, 2011)
United States v. Benson
591 F.3d 491 (Sixth Circuit, 2010)
United States v. Antrown Simms
351 F. App'x 64 (Sixth Circuit, 2009)
United States v. Roberge
Sixth Circuit, 2009
United States v. Davis
565 F. Supp. 2d 841 (N.D. Ohio, 2008)
Rice v. Moore
633 F. Supp. 2d 541 (S.D. Ohio, 2008)
United States v. Swafford
Sixth Circuit, 2008
United States v. Hettinger
242 F. App'x 287 (Sixth Circuit, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
872 F.2d 1231, 1989 U.S. App. LEXIS 4693, 1989 WL 32432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kevin-thomas-ford-ca6-1989.