United States v. Kevin Thomas Ford

NELSON, Before KENNEDY and Judges; BROWN, Circuit Senior Judge. Circuit BROWN, BAILEY Senior Circuit Judge. appeals

Ford convictions on charges using false identification and making a false statement in connection (Count I), purchase with the of a firearm providing false identification in a transac- tion that affected interstate commerce (Count II), possessing and of a firearm having felony after having previous felony violent (Count III). victions Because hold that the evidence introduced at trial and the judge’s constructively amended the contained Count III indictment, grand jury’s we reverse III, Ford’s conviction Count but we af- firm the other convictions. Statement of the Case identifying On November a man purchased “Andre himself as J. Small” Room, gun from the revolver Powder Powell, shop in Ohio. used an “Small” Ohio driver’s license that name for iden- signed denying tification and statement felony that he had a in a fire- registration arms form. driving while near

Columbus, Ohio, Ford shot himself in the Ford, A Ed- hand. friend Nathaniel wards, driving in who had been tandem Ford, pulled that Ford had noticed parking parked. lot and Edwards into a lot and witnessed followed Ford into the gave bleeding. then Ed- Ford’s hand gun ny1 support he had shot punishment with which additional wards himself, nearby 924(e)(1), proceeded having and the two at least three police Ford told the police convictions,2 station where in vio- shot another motorist. that he had been 922(g)(1) lation of 18 U.S.C. §§ station, arriving police After at the 924(a)(1) (e)(1) (Count III). hospital his car taken to a re- Ford made a motion Prior to the station. It was decided mained at limine prevent the introduction of evi- investigating officers that the vehicle the dence of more than one felony convic- impounded. police Pursuant would be tion. His contention was that the three procedure subjected the vehicle was to an violent crimes to be inventory impoundment. search before 924(e)(1) ingredients were not § search During the course of the an Ohio charged crime and only be a basis bearing picture driver’s license Ford’s but that, augmenting penalty and there- and a in the name of “Andre J. Small” fore, proof of them was not admissible in of “Andre J. Small” checkbook the name augment penal- until after conviction to pocket jacket in found a of Ford’s were ty. prose- Ford further contended that the hanging behind the driver’s which was proving cution should be limited at trial to gun took the and returned seat. Edwards one of the felonies that was in days after this it to Ford’s wife several both Count I and Count III. The motion incident. stated, was denied wife, September Ford’s Ca- government introduced evidence of six felo- thy, reported police to the Columbus convictions, ny five of which were violent. threatening gun and was to kill Ford had again objected Ford to this evidence at trial arrived, police they arrest- her. When and was overruled. ed and searched Ford but did not find a III of Since Count indictment found, gunA gun person. on his charged possession Septem- or about “[o]n upstairs in the bathroom. 1987,” judge ber the district instructed gun apparently the same that had been general charge in jury that it was Powell, purchased on November purposes of a on sufficient for Ohio. possessed that count to find that Ford had Ford, prior to November had gun reasonably September on a date near felonies, been convicted of six five of which deliberations, During were violent felonies. judge question which counsel asked charged The indictment agreed was intended to ascertain whether with, making on a false November III if they guilty could find Ford on Count denying any prior felony statement convic- gun they possessed believed that he had tions, alleging that Ford two 9,1987. judge then further on convictions, and one nonviolent criminal jury that the critical factor instructed the using and with false identification finding possession after Ford had was a purchase nection with the of a firearm felony, charged convicted of a been 922(a)(6) violation of 18 U.S.C. §§ that, substance, time frame could 924(a)(1)(Count I); producing a false (the from include date November 2, 1986 Ohio driver’s license on November date) through September alleged purchase affecting in a transaction commerce vio- (the alleged possession and domestic 1028(a)(1) (c)(3) lation of 18 U.S.C. § date). violence (Count II); possessing and with firearm on all three returned convictions or about 1987” after “[o]n years to 20 having previously convicted of a felo- counts and Ford was sentenced actually requires, charged 922(g)(1) “at least three" such convic- U.S.C. as a 2. Count III crime, "punishable by impris- specifically a crime described five such tions and then exceeding year.” for a For onment brevity, term convictions. such crime as a herein we refer to "felony". deliberated the remainder of III and to concur- parole on Count without morning of the next day on I and II. and on the sentences Counts five-year rent could not day judge on informed the that it convictions all three appeals his (1) judge verdict. The then possession reach a unanimous contending counts charge.3 III, jury a modified Allen gave the district charge in Count resumed its deliberations and respect to the The judge’s instruction that it improperly shortly firearm thereafter advised possession dates in- as to what con- alleged in the further instruction diverged the date wanted reasonably near the date reversi- stituted a date constituted dictment and therefore counts, indictment. Counsel error, (2) all as to ble stated, gist prior felony agreed, as heretofore of six of evidence introduction jury’s request re- of was for an instruction prejudicial and constituted convictions counts, (3) the conviction on Count error, as to all as to whether versible legit- possession August on during the could be based jacket of Ford’s the search gave following then of his automobile inventory search imate scope supplemental in and that instruction: impermissibly broad therefore, admit evi- was, error to Now, case, the evidence in this so dence obtained. span, a considerable time there is a time encompasses. span that the evidence the Indictment

Amendment of begin span That time would indict- judge’s sup- alleged date Count One the district argues 1986, ment, 2nd, improperly which is on November instruction plemental date it is that Kevin charge contained Count on which amended the purchased this modification this firearm. and that Thomas Ford of the indictment begins his on that then on No- reversal of And that time frame warrants 2nd, 1986, III of the indictment all the In Count vember and extends count. charged: way up specified to the date indictment; namely, Sep- 28,1987, Three of the September or about course, 28th, 1987, Ohio, which of tember KEVIN District Southern violence, and FORD, unlawfully date of the domestic possess did THOMAS firearm, include the dates in between. that is a that would affecting commerce a course, Wesson, 60, And, particular special .38 there is one Model Smith revolver, subject of some having date which has been the caliber case; imprisonment namely, for in this the date of punishable by a crime having Mr. was in- exceeding year an incident in which a term highway, previous convictions while on the jured least somehow felonies.... constitute violent Interstate case, significant In what is would this specific charged five convic- III then finding beyond reasonable doubt a be tions of crimes. possessed a Kevin Thomas Ford general instructions judge’s commerce, firearm, he affecting after instruction jury included a standard felony. And in convicted of a had been jury’s proper consideration as to the frame could include the time language contained in the “on or about” 1986, 2nd, from November date indictment: firearm, allegedly purchased the date he government necessary that the is not [I]t 28th, up until the date of doubt that prove beyond a reasonable alleged domestic the date of the on the exact alleged were committed acts home. violence It is suffi- in the indictment. date named Thirty-five minutes after this you beyond find a reasonable if cient a verdict given, returned on was committed that the offense was doubt three counts. alleged. guilty on all reasonably date near the a date (1896). States, L.Ed. 528 164 U.S. Allen v. United 3. See (6th Cir.1978) recognized (adopting the Gaith Supreme Court has er court’s definitions of amendment of modifications to the damaging effect variance), Ex grand jury. charges issued Bain, (1981). An

parte 7 S.Ct. (1887), per prejudicial amendment is considered se declared: 30 L.Ed. 849 the Court conviction, and warrants reversal of a province of a court to If it lies within whereas a variance not reversible error change charging part of an indict- unless the accused prejudicial has notions of what it ment to suit its own upon his defense. United States v. effect been, grand ought or what the to have Hathaway, 910-11 Cir. if probably have made it their 1986); Beeler, 342; Wright, 587 F.2d at C. suggested attention had been called to Federal Practice and Procedure changes, great importance which the attaches to an indictment common law An pris- per prej- amendment is considered se grand jury, prerequisite as a crime, infringe- udicial because it effects a direct oner’s trial for a without upon guarantee the fifth amendment says person “no which the Constitution person answer,” shall be held to answer frit- shall held to be “[n]o crime, capital, for a or otherwise infamous away is almost de- tered until its value presentment unless on a or indictment of a stroyed. Jury....” charging Grand When the Later, Stirone v. United the Court effectively terms of an indictment al- are States, 215-16, tered, the accused is held answerable 272-73, utilized charge through protective not levied the Bain language support of as above-cited variance, grand A jury. device of a how- rights ruling the constitutional for its that ever, charging does not undercut the terms of an accused are violated when a modifica merely permits of an indictment but the tion at trial to broaden the acts proof of facts to the criminal establish contained in indictment. Such a modifi an charge materially different from the facts held, cation, the Stirone Court contradicts contained in the indictment. In this man- very purpose the of the fifth amendment ner a variance does not violate the fifth is, grand requirement, that “to limit grand jury guarantee in- amendment but jeopardy to offenses [the accused’s] infringes upon “apprisal stead the func- charged by group of his fellow citizens re- tion” of the sixth amendment which acting independently prosecuting of either prosecutions, quires that all criminal “[i]n Stirone, attorney judge.” or 361 U.S. at right enjoy shall the ... to be the accused omitted). (footnote at 273 of the of the nature and cause informed accusation_” widely recognized that modifications It is Moore, J. Moore’s Feder- charges grand jury contained in a of the ¶ (1988). al Practice 7.05[1] in indictment exist two forms: amendments Blurring amend- the distinction between variances. concept is the ments and variances amendment An of the indictment occurs amendment is a vari- constructive charging the indict- when the terms of prejudicial per that is accorded the se ance altered, literally in ment are either or Supreme of amendment. The treatment an effect, the by prosecutor or court after a modifi- Stirone in dealt with such Court grand passed upon them. jury has last In that cation of the indictment. charging variance A occurs when the obstruct- indictment Stirone with unaltered, indictment are left terms an importation of sand from ing the interstate proves offered at trial but the evidence supplier Pennsylvania to a concrete outside those al- materially facts different from offered the state. The evidence within leged in the indictment. court’s in- prosecution and the district States, structions, permitted to v. Gaither United omitted). (footnotes (D.C.Cir.1969) find that had interfered with Stirone Beeler, from a Penn- exportation of steel See also United States interstate hold by a felon. We 1987” to be constructed later plant sylvania possession essential element supplier’s concrete. Pennsylvania although not an trial as to there was at Ford’s so modified held Court of the indict- terms the actual amendment to a constructive alteration amount permitted the court ment, district since the III of the indictment. materially different facts consideration language is used “on or about” When to in the indictment contained from those indictment, of an proof of the exact date an component commerce interstate prove the long a date as as is not offense jury that such charged the of the crime indict named reasonably near that found, the inter- facts, could establish if States is established. United crime, this variance component state (2d Cir.), Nersesian, 824 F.2d per preju- se as to amount great sowas U.S. -, dicial error.4 supplemental 98 L.Ed.2d sense there was variance While judge given by district dur pleading and between of a variation ing jury’s nevertheless deliberations destroyed here proof, that variation First, the test for two reasons. fails this right tried to be substantial defendant's instructed indict- an charges presented only on any date over a possession find on could Depriva- jury. grand ment returned approximately eleven months. period of right is far too such a basic tion of 1986 date that the November to us clear nothing more be treated serious to reasonably Sep near that is a date dismissed and then than variance Second, believe tember error. harmless approved by such “reasonably near” rule Stirone, 80 S.Ct. at single contemplates a cases as Nersesian the sit these definitions Applying precisely of which is not exact date act the us, readily apparent it is uation before therefore, by the known did the indictment a literal amendment exactitude. does not need terms as the actual not occur Here, (purchase), Au the November equally apparent It is were unaltered. Sep (incident highway), and gust 1987 constructive amounting a variance violence) in (domestic events 1987 tember prosecu as had occurred amendment of separate substantially incidents volved prove that trial to evidence at tion offered indi language possession. Absent alleged on November possessed a firearm Ford permit a intent to cating grand jury’s addition August 1986 and than one incident based on more conviction in in the date stated September conduct, assume a court cannot of criminal dictment, instructed and the court in its have included that a finding possession of Novem that crimi incident of an additional indictment 1987 satisfied September ber 1986 Bain, at nal conduct. held that a has This circuit indictment. possible that therefore at 786. It of a constructive rises to level variance inci an Ford based on convicted indict of an terms when “the amendment by the possession of intended dent presenta by the in effect altered are charge. This part to be of grand jury instructions and tion of evidence grand amendment the fifth frustrates of offense modify elements so essential possible guarantee. It is also indictment likeli substantial there is a charged that may have that jurors some found may been have the defendant hood 28,1987, September on possessed a firearm than that other of an offense on possession found others have Hathaway, charged in the indictment.” another others still and charged Here, the offense at 910. period within the time stated date all or about possession was “[o]n "literally” an amend- although not amendment ment. amendment” 4. This “constructive so-called stated, approved court Beeler As appears same as to be the the indictment adopted from Gaither. being doctrine "in an and effect” to in Gaither referred instruction. It is therefore tion under judge’s both Count I and Count III and guilty requirement proof verdict re that the uncertain whether of three vio- III unanimous lent felonies under Count III only turned on Count was was enhance the required by Rule of Criminal Pro sentence and was Federal not an ele- 31(a).5 ment of the crime.6 cedure At the time of this this court had We therefore hold that the modification recently Brewer, decided United possession charge in III States Count at (6th Cir.1988) (Brewer I), 841 F.2d 667 trial the court constituted constructive which involved a conviction under 18 U.S.C. of the indictment. This con- amendment App. 1202, part of an earlier version of prejudicial per amendment structive was se this Armed Career Criminal In Act. Brew Ford’s and warrants reversal of I, er charged the indictment had not III. on Count govern violent crimes and the proved Prior Felonies on Effect of Proof Six ment had such crimes after convic I and II appeal, Convictions Under Counts tion to enhance the sentence. On was contended the defendant that such I, stated, As under Count Ford was predicate violent crimes were crimes to con charged, purchase in connection viction and they therefore must be firearm, making a false statement in charged proved in the indictment and at having denied been convicted of a that he agreed trial. This court and in Brewer I 922(a)(6). felony. In that U.S.C. § reversed the conviction. The district alleged proved count it was and was at trial applied in the instant holding case that Ford had been convicted of three felo- requirement Brewer I and treated the holding hostage, nies: a correctional officer conviction of three being violent crimes as battery, receiving and assault stolen an element of crime to be stated, property. As has been also rehearing, trial. On this court in charged pos- III it that Ford II, Brewer, Brewer United States v. firearm, having sessed a been convicted of (6th Cir.), F.2d 1319 felony having previously -, victed at least three violent felonies. 18 determined that the three 924(a)(1) (e)(1). 922(g)(1)and U.S.C. §§ crimes were not crimes to convic It was further only tion and were for enhancement basis proved at been convict- court, punishment after conviction. This ed, in addition to the two violent felonies therefore, II, in Brewer affirmed the con I, also in Count of three additional viction. position violent felonies. Ford’s trial prosecution reaching interpretation should be allowed to its of the stat- prove support the convic- ute in Brewer this court said: brief, commerce, appellate possess affecting any or In his Ford asserts that it was to ... conclusively proved gun not at trial the firearm.... 9, involved in the 1987 incident was the 924(e)(1) provides: 18 U.S.C. § gun purchased same as that from the Powder person In the case of a who violates section or Room on November discovered 922(g) of this title and has three Ford’s home on so, 1987. If this is by any convictions court referred to in section complication there is an additional since the 922(g)(1) felony a of this title for a violent or aspect interstate commerce of this firearm was offense, both, drug person serious or such not at trial. We need not address this $25,000 more than shall be fined not issue, however, since reversal of Ford’s convic- years, imprisoned not less than fifteen on Count III is on other tion warranted law, notwithstanding any provision other grounds. of, suspend the court shall not the sentence or to, grant probationary person 922(g)(1) provides: a sentence such 6. 18 U.S.C. § respect section with to the conviction under any person— It shall be unlawful for (1) of, 922(g), eligible person shall not be and such who has convicted in court parole respect punishable by imprisonment to the sentence im- for crime exceeding for a term year; posed one under this subsection. 42 L.Ed.2d 667 the concerned that is also This court Adkins, 464 v. Ca also United States the interpretation of ACCA [Armed (“The (E.D.Tenn.1978) in F.Supp. appellants urged by reer Criminal Act] charge more may properly “require the dictment herein dissent would and the conviction, and the prior felony than one of a defen place evidence government to ACCA. The of this kind fore evidence, [U.S. [D.C.Cir.1987] dant’s the v. three ] Jackson, either inherently prejudicial of evidence prior any proceeding “[A]bsent the felony convictions be text, structure, is well-known.” any convincing ^[21] under the nature at 25. or ed States case of United States government only one such Cir.1981). Moreover, in the Fifth Circuit is Timpani, Cir.), conviction.”). not limited to Rusk, 512 F.2d F.2d Accord Unit establishing (1st intro ACCA, prior felony convictions were five history of the legislative prove the duced to defendant from this to deviate Congress intended application form that he falsely stated in an should not re this general policy,” court punish of crime pri- had never been convicted proof highly prejudicial quire that exceeding by imprisonment for required at trial. Id. able term convictions be or year. one 1324-25. 853 F.2d at proof the appears to us that language in on this argues, based prior felony not consti six convictions did II, error vis- it was reversible Brewer I error so far as Count the tute reversible III to admit into a-vis Count was, government under concerned. The and that crimes proof of five violent the cited, prove to more entitled authorities convictions un- this error also vitiates felony prior violent conviction II, than one Brewer and Count II. Count I der for under Count predicate crimes conviction hold; simply points it not so does intending to III. While I and Count this effect of possible prejudicial to the government’s motive indicate that a reason for felonies as proof of violent that, here, it must be remembered relevant provide that such to construing statute I, Brewer time at the for enhance- only be allowed proof should prove to government required crime after penalty ment of convictions un- violent criminal conviction. govern- Certainly, der Count III. since dealing considering the cases Before prove than one to more entitled more than proving propriety predicate satisfy can felony where one predicate one I, spec- conviction under Count I and statute, note that both we of five such proof ulation conclude proof III required likely a difference to make convictions was Ford contends felony. And jury. confined have been government should proof of Accordingly, hold that the we felony, do not such proof not consti- prior felony convictions does govern- to contend that understand him respect to Count error with tute reversible to select have been ment should I. felony receiving stolen one nonviolent property. respect to Count while With I Counts to sever Count government moved has held that the This circuit no motion sever there to only prior proving to is limited Further, ap- is no I. there II from Count 18 U.S. under former felony conviction mo- denial of the peal from the severance 1202(a)(1), prohibited the C.App. Thus cannot here was made. it tion that person who firearm possession of a court, in not argued that the district be Unit conviction. had one counts that (6th severing II from Burkhart, 15 545 F.2d ed States crimes, commit- predicate Fields, proof of allowed Cir.1976); 500 United States v. reversible error. denied, 419 ted (6th Cir.), F.2d 69

1239 it, charged ently presented to specifically The district court unless there is an ‘overwhelming may probability’ evidence of jury: jury not consider “[Y]ou prior any way in will be unable to follow the court’s instruc Defendant’s convictions Marsh, tions, Richardson v. [200, 481 determining guilt or US Defendant’s innocence as to Count may not consider evidence of Defendant’s 2 of the indictment.... You 208], 95 L Ed 2d and a strong likelihood that the ef 107 S Ct 1702 ^[1708] fect of the ‘devastating’ evidence would be general prior as evidence of a convictions States, defendant, Bruton v. United to propensity part on the of the Defendant to 20 L US Ed 2d 88 S Ct commit crime.” (1968).”); Spencer, [, 385 U.S. at 1628] Superintendent, Ky. In Murray v. State (“the jury expected 87 S.Ct. at 653 is (6th Penitentiary, Cir. to limiting follow instructions in this evi 1981), case, petitioner a habeas had function,” proper i.e., dence to its evidence convicted, charge connection with a prior conviction to enhance the sen being robbery, of armed an habitual tence). In Murray, this court went on to prosecution, offender. At the time of the limiting given hold that a law, Kentucky prior under the two felonies general charge was sufficient it necessary predicate to conviction were of given was not that it be at the charged fenses to and to be be prior time the evidence of conviction is robbery. Kentucky the trial for armed introduced. jury that it recognize, expressly recog- We as was prior felony not to consider the convictions in Murray, nized that this court was there petitioner evidence that had committed applying constitutional and was not law robbery. the armed In the habeas it exercising supervisory powers respect petitioner was contended that had been de a trial in federal district court. to Never- process by allowing nied federal due theless, prepared, exercising we are not proof offenses at arm only supervisory powers, to reverse robbery ed trial. This court reversed II conviction on Count under these circum- grant district court’s relief. habeas stances. reaching result, princi this court relied connection, that, point In this we Texas, out pally on Spencer v. under Rule 609 the Federal Rules of (1967). Judge 17 L.Ed.2d 606 Evidence, testifies, if a defendant he Keith, court, writing for this said: impeached appropriate circum- be Spencer keyA holding was that a by proof prior felony stances convic- rights protected defendant’s are deemed situation, rely tions. In that we must on a by limiting pre instructions. A charge proof may that such directing sumed to heed an instruction impeaching considered the credibili- prior not to consider a defendant’s crimi ty of the defendant as a witness and not as guilt. nal record as that he substantive evidence committed the Spencer supra, 385 U.S. at 561-62, being point he crime for which tried. We logical S.Ct. at converse of this which, only as another context in this out argument is that it is unfair —and viola- rely in a criminal on a process tive due evidence of other —if proof prior to consider convic- crimes is in limiting admitted without a solely purpose. tions for a limited struction. This court so held in Evans v. Cowan, (6th Cir.1974), Accordingly, we conclude the intro- Cowan, Dawson v. 531 F.2d 1374 duction of the evidence of the felonies Cir.1976), and Turnbill v. Bordenkirch in this case under did these circumstances er, (6th Cir.1980). 634 F.2d 336 respect not create error reversible the conviction under Count II. Murray, 651 F.2d at 453. See also Greer Miller, 756, 107 Inventory Search (“We normally pre n. pursuant sume that a will follow an instruction disregard legitimate inventory inadmissible evidence inadvert search and to local investigating police pointed majority, As out Cir- police procedure, cuit has twice held that the indictment a false driver’s license discovered officers more than one conviction and pocket checkbook and a false government is not limited to establish- seat of Ford’s hanging the back jacket ing only single conviction. In both of dispute legitimacy does not car. Ford prior those cases there were two Instead, he con- inventory search. of the victions, not six as there are here. No pockets into tends that the search government interest of the served scope proper of the jacket exceeded many evidence of so additional convictions. inventory search. clear, Prejudice espe- to the defendant is inventory of an automobile An search cially where five are of a violent nature. police procedures impounded pursuant magnitude might of that well Convictions safeguarding purpose of the valu- for the cause a to “feel that incarceration is proper under in the vehicle is Colora- ables justified because the accused is a ‘bad man’ Bertine, 479 U.S. 107 S.Ct. do v. regard guilt without to his of the crime (1987),and South Dakota v. Texas, currently charged.” Spencer 3092, 49 Opperman, 428 U.S. 96 S.Ct. 648, 659, 17 L.Ed.2d Bertine, police (1967) (Warren, C.J., dissenting). containing drugs inside a found canisters recognized prejudice requiring We the driver’s seat of backpack found behind evidence of three violent felonies Brewer inventory search. subjected a van to an II. Had not the District Court believed held that the search of van Court government prove was backpack did not violate the fourth and the three violent felonies to establish the ele- Bertine, amendment. 479 U.S. at III, ments of Count there is little likelihood Similarly, 743. the search 107 S.Ct. at have evidence of all that would admitted jacket hanging in the back seat of Ford’s supervisory six convictions. Under our re- and was was not unreasonable vehicle sponsibility I would find it an abuse of permissible scope of an not outside the of the six con- discretion to admit evidence jacket The search of the inventory search. victions to establish that the defendant was procedures pursuant police to local was a convicted felon. necessary safeguard any valuables was safeguard pockets contained in its and to guard against jacket as well as to itself vandalism, theft, negligence or

claims of Bertine, part police. therefore 107 S.Ct. at 742. scope of the invento-

within the reasonable ry search obtained there- FEDERAL COMMERCE SAVINGS trial. admissible at Ford’s BANK, Plaintiff-Appellant, reasons, AFFIRM foregoing

For the on Count I and

the convictions of Ford FEDERAL DEPOSIT INSURANCE Ford’s convic- but we REVERSE CORP., Defendant-Appellee. tion on III. No. 87-5568. Appeals, Court of United States KENNEDY, concurring Judge, Circuit Sixth Circuit. dissenting part. part Argued May I a modification of concur that there was requires Count III of the indictment which April Decided I that the evidence retrial. Because believe extremely of five violent felonies was require I also a new

prejudicial,

on Counts I and II as well.

Case Details

Case Name: United States v. Kevin Thomas Ford

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 10, 1989

Citation: 872 F.2d 1231

Docket Number: 88-3603

Court Abbreviation: 6th Cir.