An unredacted indictment showing Defendant’s excluded priors mistakenly sent to the jury was harmless error

The Defendant in U.S. v. Dortch was charged in federal court with possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a federal criminal drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The indictment also charged the defendant with possession of two specific firearms by a convicted felon and it alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

No constructive amendment of an indictment charging possession of a specific firearm where the jury instruction describes a generic firearm.

The jury instructions did not mention the specific kind of firearm possessed, but rather it instructed that he was charged with possession of a generic firearm in furtherance of a drug trafficking offense. The defendant claimed the district court erred by permitting a constructive amendment to the indictment which alleged possession of two specific firearms. At trial the government offered evidence of four guns. The jury was instructed it could convict if it found the defendant possessed “a firearm.”

Reviewing for plain error, the Eleventh Circuit found no constructive amendment. There were no Supreme Court cases nor was there any precedent in the Eleventh Circuit supporting the defendant’s argument that a court constructively amends an indictment that alleges possession of a particular firearm by instructing the jury that it may convict for possession of any firearm. While there is some split in the circuits, the Eleventh Circuit ruled with the majority of the circuits (8th, 10th, and 6th ) that there is no constructive amendment under these circumstances.

Evidence of a prior acquittal is inadmissible.

The defendant wanted to introduce evidence that he was acquitted in state court of the charges relating to a drug transaction admitted in evidence through an informant who testified in the federal trial. The Eleventh Circuit ruled that the defendant could not introduce evidence of his acquittal of the state charges in connection relating to the marijuana transaction. Judgments of acquittal are hearsay and unlike judgments of conviction which may be admitted under the Federal Rules of Evidence for some purposes, judgment of acquittal are not covered by an exception to the rule against the admission of hearsay.