United States v. Milbourne

129 F. App'x 861
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 11, 2005
Docket04-4302
StatusUnpublished
Cited by1 cases

This text of 129 F. App'x 861 (United States v. Milbourne) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Milbourne, 129 F. App'x 861 (4th Cir. 2005).

Opinions

GREGORY, Circuit Judge:

James Edward Milboume (“Milbourne”) appeals his conviction for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (Count I); possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count II); and carrying a firearm during and in relation to the drug trafficking crime set forth in Count II, and possession of a firearm in furtherance of that drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count III). On appeal, Milbourne asserts that the Government violated his Fifth Amendment rights by constructively amending the indictment, and challenges the sufficiency of the evidence as to Count III. We affirm his conviction.

I.

On November 16, 2002, several officers from the Raleigh Police Department executed a search warrant at the residence of Milbourne’s girlfriend, Katrina Ross (“Ross”).1 When the officers arrived, they made a forced entry into the residence and secured seven adults and two children present in the residence. After searching Milbourne, an officer found a “nickel” or “dime” bag of marijuana on his person.2 Another officer found a semi-automatic pistol between the mattress and box spring in Ross’s bedroom. The officer questioned Milbourne about the gun. After verbally waiving his Miranda rights, Milbourne admitted that he had previously purchased the firearm from a man named Zollie Gibson (“Gibson”), also present in the residence at the time of the search. Milbourne told the officer that he had only used the gun once, after an altercation that took place outside of his residence. Milbourne had been previously convicted of a felony and his right to possess a gun had not been restored.

The officer also asked Milbourne if he had any contraband in the residence. Milbourne directed the officer to a jacket in the closet of Ross’s bedroom that contained bags amounting to 11.5 grams of marijuana.3 Milbourne admitted that he sold “an ounce or two” per week and made about $175 in weekly profit. During the search, the officers also found two marijuana cigarette butts, some marijuana seeds, and plastic baggies.

[864]*864In addition, the officers found an “eight-ball” of crack cocaine in the kitchen.4 The testimony at trial indicated that Gibson had dropped the cocaine just as the officers entered the residence. Milbourne admitted that Gibson had brought the crack cocaine over for Milbourne to sell, but stated that he had not taken possession of the crack cocaine at the time of the search. Milbourne was not charged with a crime in relation to the crack cocaine and, at trial, an officer stated that the Government did not have enough evidence to charge anyone with the cocaine.

After the search, in an effort to cooperate with the police, Milbourne made a phone call to a drug supplier and ordered an amount of cocaine. The supplier was unable to make a timely delivery and the investigation was terminated.

At trial, Milbourne moved for a judgment of acquittal on Count III, the charge of possession of a firearm in furtherance of the drug trafficking crime of possession with intent to sell marijuana, both at the close of the Government’s case and at the close of the evidence. The district court denied both motions. Milbourne then filed a motion for acquittal on Count III, which the district court also denied. The district court sentenced Milbourne to imprisonment for 120 months on Counts I and II to be served concurrently, and to 60 months on Count III to be served consecutively to the sentences on Counts I and II. This appeal follows.

II.

A. Constructive Amendment of Indictment

Milbourne argues that the Government, in both its presentation of evidence and argument, relied heavily upon evidence of cocaine dealing and of drug dealing in general to establish the nexus between possession of a firearm and drug dealing required by § 924(c). This, he argues, amounted to a constructive amendment of Count III of the indictment, which charged him with possession of a firearm in furtherance of the specified predicate drug crime of possession with intent to distribute marijuana. Issues raised for the first time on appeal are subject to plain error review. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). However, “constructive amendments of a federal indictment are error per se, and under Ola-no, must be corrected on appeal even when not preserved by objection.” United States v. Floresca, 38 F.3d 706, 714 (4th Cir.1994) (en banc).

The Fifth Amendment to the United States Constitution guarantees that a criminal defendant may only be tried on charges alleged in an indictment, and “only the grand jury may broaden or alter the charges in the indictment.” United States v. Randall, 171 F.3d 195, 203 (4th Cir.1999) (internal quotations and citations omitted). A constructive amendment to an indictment occurs when: either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instruction to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury. Floresca, 38 F.3d at 710. A constructive amendment is a “fatal variance” because the indictment is altered “to change the elements of the offense charged, such that the defendant is actual[865]*865ly convicted of a crime other than that charged in the indictment.” United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.1991).

Not all differences between an indictment and the proof offered at trial rise to the “fatal” level of a constructive amendment. Randall, 171 F.3d at 203 (citing United States v. Redd, 161 F.3d 793, 795 (4th Cir.1998)). When different evidence is presented at trial but the evidence does not alter the crime charged in the indictment, a “mere variance” occurs. Id. A mere variance does not violate a defendant’s constitutional rights unless it prejudices the defendant either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense. Id.

Section 924(c)(1)(A) of Title 18, the offense charged in Count III of Milbourne’s indictment, prohibits a person from using or carrying a firearm “during and in relation to a crime of violence or drug trafficking crime,” and from possessing a firearm “in furtherance of such crime.” 18 U.S.C. § 924(c)(1)(A) (2000).

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129 F. App'x 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-milbourne-ca4-2005.