United States Court of Appeals For the First Circuit

No. 18-2197

UNITED STATES OF AMERICA,

Appellee,

v.

REGINALD MCBRIDE, a/k/a Kweasia McBride, a/k/a Reggie McBride, a/k/a Reginald Washington, a/k/a Benjamin McBride, a/k/a Manney McBride, a/k/a Anthony Walker, a/k/a Ben McBride, a/k/a John Doe, a/k/a Sunny,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Lynch, and Barron, Circuit Judges.

Elizabeth A. Latif and Law Offices of Elizabeth Latif, PLLC on brief for appellant. Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

June 11, 2020 LYNCH, Circuit Judge. After a three-day trial, a jury

convicted Reginald McBride of (1) possession of a firearm by a

prohibited person, in violation of

(g)(1);

(2) possession with intent to distribute heroin, in violation of

(a)(1); and (3) carrying and using a firearm during

and in relation to, and possessing the firearm in furtherance of,

a drug trafficking crime, in violation of

(c). In

the course of determining McBride's guilt on Count Three, the jury

was asked one special interrogatory and determined that the

government had not proven that the firearm was "discharged."

McBride challenges his conviction on Count Three on two

grounds. He argues that the indictment was constructively amended

in violation of the Fifth Amendment's Grand Jury Clause because of

the admission of evidence, the government's closing argument, and

the jury instructions. He further argues that the jury's verdict

on Count Three and the special interrogatory answer were

irreconcilably inconsistent. We affirm.

I.

McBride only challenges his conviction on Count Three.

We recount the relevant facts in the light most favorable to the

verdict. United States v. Leoner-Aguirre,

(1st

Cir. 2019).1

1 As to Counts One and Two, McBride contested at trial that he had previously been convicted of a felony and that the

- 2 - A. Facts

On June 26, 2016, Samantha Tupper, a friend of McBride,

drove a white Ford Taurus to where McBride had been staying with

a friend in Augusta, Maine. McBride testified that Tupper had

called him and said she needed to talk to him about something.

McBride packed up his belongings and when Tupper arrived, he put

his bags into the trunk of the car. The two drove around Augusta

and Tupper told McBride that some other individuals had informed

her that she owed them money.

McBride further testified that he and Tupper drove to a

convenience store and picked up two females, who sat in the

backseat. One of the women began to physically attack Tupper while

Tupper was driving and demanded that Tupper pay her the money that

she owed. Tupper stopped the car at the Walmart in Augusta and

continued arguing with the woman. At various points during the

dispute, Tupper, McBride, and both female passengers got out of

the vehicle in the Walmart parking lot.

Another man approached the group in a silver Volkswagen

and got out of the vehicle. McBride testified that the other man

pulled out a gun. McBride further testified that he drew the

substance found in his possession was heroin. He does not challenge on appeal that he had previously been convicted of possession of a controlled drug, forging a public record, distribution of cocaine, and criminal possession of a weapon, nor does he challenge that the substance he possessed was heroin.

- 3 - weapon holstered on his hip and fired it at the man. About five

shots were exchanged between McBride and the other man.

McBride removed the magazine from his gun, threw both to

the ground, and began physically fighting the other man. Two

Walmart patrons approached McBride and the other man and broke up

the fight. McBride and Tupper got into the white Ford Taurus and

drove away. The other man and the woman who had fought with Tupper

stayed in the parking lot and waited for the police. One of the

individuals who broke up the fight saw a firearm and magazine

"laying on the ground next to each other." He kicked them away

from each other and awaited the arrival of law enforcement.

An Augusta Police Department officer responded to the

shooting at the Walmart. He recovered the firearm that was on the

ground of the parking lot. It was a Kel-Tec .9-millimeter pistol.

He also found the pistol's magazine "7 to 10 feet away."

Additional officers arrived within a few minutes. They recovered

bullet casings from the ground of the Walmart parking lot. An

officer observed a bullet hole in the door of the silver

Volkswagen.

Another Walmart patron observed the altercation and

filmed McBride getting into the passenger seat of the white Ford

Taurus before Tupper drove it away from Walmart. The patron

followed the Ford Taurus, recorded its license plate number, and

gave this information to law enforcement.

- 4 - Law enforcement matched the plate number to an address

in Augusta on Mayflower Road. An officer from the Hallowell Police

Department drove to the address. The officer found the white Ford

Taurus parked in the driveway with Tupper and McBride in the

process of getting out of the car. The officer ordered both Tupper

and McBride to put their hands up. Tupper obeyed, but McBride

failed to follow the officer's instructions, and the officer called

for backup. Two more officers arrived, at which point McBride

complied, and the officers took McBride into custody.

Officers searched McBride and found a wallet, brass

knuckles, money, several empty baggies, and a baggie containing

about forty grams of heroin. McBride had an empty gun holster

attached to his waist. Officers also observed bullet holes in the

passenger side of the Ford Taurus.

On July 6, 2016, officers searched the Ford Taurus at

the Augusta Police Department. In the trunk, they found a .22

caliber Cobra handgun, a Jennings .32 caliber pistol, a holster,

four digital scales, a gun scope, ammunition, a speed loader, and

a playing card with the name "Sunny" written on it.2 Under the

front passenger seat, officers found a .22 caliber revolver.

2 McBride also went by the name Sunny.

- 5 - B. Procedural History

On November 8, 2017, a federal grand jury returned a

second superseding indictment charging McBride with three counts.

Count One charged that McBride "knowingly possessed in and

affecting interstate commerce a Kel-Tec, CNC Industries Inc.,

model PF-9, 9 mm pistol, with serial number SDT02" and that he

"had previously been convicted of a crime . . . punishable by

imprisonment for a term of more than one year." Count Two charged

that McBride "knowingly and intentionally possessed with intent to

distribute . . . a mixture or substance containing heroin." Count

Three charged that McBride "knowingly carried and used a firearm,

namely a Kel-Tec, CNC Industries Inc., model PF-9, 9 mm pistol,

with serial number SDT02, during and in relation to a drug

trafficking crime . . . and possessed the firearm in furtherance

of such drug trafficking crime." The indictment further stated

that "the drug trafficking offense is the offense as alleged in

Count Two of this Indictment." The indictment also charged that

"[t]he defendant discharged the Kel-Tec, CNC Industries Inc.,

model PF-9, 9 mm pistol, with serial number SDT02."

McBride's trial began on March 9, 2018. On March 12,

2018, the government moved to admit the Kel-Tec pistol as well as

the three other firearms recovered from the Ford Taurus. All four

firearms were admitted without objection by McBride.

- 6 - On March 13, 2018, the government offered testimony from

forensic analysts about the fingerprint and DNA analyses performed

on all four firearms. During the examination of a fingerprint

analyst, defense counsel objected:

I appreciate that the government has introduced evidence of multiple firearms. It seemed relevant because it was essentially obtained from things that could be attributed to Mr. McBride. They've only charged possession relative to the Kel-Tec 9 millimeter and the charge in Count 3 as relative to that firearm, as well. Connecting through forensic evidence the defendant to a different firearm I think is problematic . . . .

The district court overruled the objection, stating, "I think the

fact that he had multiple guns is relevant to Count 3." Defense

counsel objected again on the same grounds later in the testimony,

and the district court overruled the objection.

Later during the examination of a DNA analyst, defense

counsel objected "to testimony . . . from this witness regarding

analysis of firearms other than those expressly charged in the

indictment." The district court overruled the objection. After

defense counsel objected again later in the testimony of the DNA

analyst, the district court stated:

I realize you're protecting the record on this, but it's very, very clear to me that the other guns are part of the circumstances that I'll instruct the jury that they can consider on Count 3 . . . . [I]t seems to me very clear that the presence of other guns is relevant to the question of in furtherance.

- 7 - The court granted defense counsel a continuing objection and stated

"[y]ou are fully protected under the record on this."

In delivering the jury instructions, the district court

stated that "[f]or purposes of Count 3, you may consider all the

surrounding circumstances." This could include factors "like

whether Mr. McBride's possession of the firearm was legal; the

type of weapon; whether the gun was loaded; whether there's any

evidence . . . that the weapon was stolen; how accessible the

firearm was; and the time and circumstances under which the firearm

was found." The district court further stated:

In order for you to find Mr. McBride guilty of [Count Three], the government must prove the following elements beyond a reasonable doubt: First, that Mr. McBride committed the crime of possession of heroin with the intent to distribute described in Count 2; and, second, that Mr. McBride knowingly used or carried a firearm during and in relation to the commission of that crime.

(Emphasis added.) At the close of the instructions, the court

reminded the jury to "[c]onsider only the crimes charged. . . .

Mr. McBride is not on trial for any act, conduct, or offense not

alleged in the second superseding indictment." Defense counsel

did not object to the instructions.

The government began closing arguments by stating that

on June 26, 2016,

McBride[] got in the passenger seat of a Ford Taurus and traveled to the Walmart in Augusta.

- 8 - He was armed with a Kel-Tec 9 millimeter pistol. . . . In his pocket, he had over 40 grams of heroin. While he was there, he discharged that firearm, threw it on the ground, and he left the scene.

The government stated that it was "based on these acts" that

McBride was charged with the three counts. Then the government

summarized the evidence found in the Ford Taurus, including the

three firearms not named in the indictment. The government again

referenced these three firearms when discussing the evidence

supporting Count Two, stating that the jury should consider these

firearms in assessing whether McBride possessed with intent to

distribute heroin. The government turned to Count Three and did

not reference the three firearms found in the Ford Taurus.

Instead, it only referred to the Kel-Tec pistol.

Defense counsel's closing argument focused on Count

Three and argued that McBride's presence at the shooting was only

a coincidence. In rebuttal, the government stated, "[i]t is no

coincidence that Mr. McBride had these 40 grams of heroin in his

pocket; it's no coincidence that he had that Kel-Tec 9 millimeter

on his hip; and it's no coincidence that he had these two other

firearms in his trunk in his property." Further, the government

stated, "[d]efense counsel says there's no evidence for Count 3,

no evidence. Well, that disregards, again, the drugs, the guns."

The district court submitted the case to the jury. The

verdict form included three sections, one for each count charged

- 9 - in the indictment. The form explicitly referred to the charges as

laid out in the second superseding indictment. Under Count Three,

the form included two spaces for the jury to fill out. First, it

asked whether McBride was "not guilty" or "guilty beyond a

reasonable doubt" on Count Three. It also included a special

interrogatory that asked, "[d]o you unanimously find that the

government proved beyond a reasonable doubt that the firearm was

discharged?"

On March 14, 2018, the jury convicted McBride of all

three counts. In response to the "discharge" special

interrogatory, the jury answered "[n]o." On November 27, 2018,

the district court sentenced McBride to 88 months and 201 days'

imprisonment on Counts One and Two to be served concurrently and

60 months' imprisonment on Count Three, to be served consecutively.

McBride timely appealed.

II.

A. There Was No Constructive Amendment of the Indictment

McBride argues that the government constructively

amended the second superseding indictment in violation of the Fifth

Amendment's Grand Jury Clause. He asserts that this constructive

amendment occurred because of the district court's admission of

the three uncharged firearms found in the Ford Taurus, the

government's reference to these firearms in closing arguments, and

the district court's failure to give "any . . . limiting

- 10 - instruction" that the firearms could not be used in considering

Count Three.

The parties dispute whether McBride preserved this

challenge. "We review a preserved claim of constructive amendment

de novo." United States v. Hernández,

(1st Cir.

2007) (emphasis omitted). An unpreserved claim is reviewed for

plain error. United States v. Rosario-Pérez,

, 289

(1st Cir. 2020). McBride did not object to the introduction of

the three firearms, failed to object to the jury instructions

given, and "never raised the issue of a constructive amendment

before the district court." Nevertheless, he argues that his

argument is preserved under the Supreme Court's recent decision in

Holguin-Hernandez v. United States,

(2020), because

of the statements made by defense counsel when objecting to the

fingerprint and DNA evidence. In Holguin-Hernandez, the Court

explained that "[b]y 'informing the court' of the 'action' he

'wishes the court to take,' a party ordinarily brings to the

court's attention his objection to a contrary decision" and thereby

preserves the claim.

(citation omitted) (quoting Fed.

R. Civ. P. 51(b)). We need not resolve this issue because even

assuming arguendo that McBride preserved his constructive

amendment argument, it fails.

"[A] constructive amendment occurs when the charging

terms of an indictment are altered, either literally or in effect,

- 11 - by prosecution or court after the grand jury has last passed upon

them." United States v. Valdés-Ayala,

(1st Cir.

2018) (alteration in original) (quoting United States v. Taylor,

(1st Cir. 2017)). "The rule against constructive

amendments exists to preserve the defendant's Fifth Amendment

right to indictment by grand jury, to prevent re-prosecution for

the same offense in violation of the Sixth Amendment, and to

protect the defendant's Sixth Amendment right to be informed of

the charges against him."

(quoting Taylor,

)

(internal quotation marks omitted). Such an amendment may occur

through the "admission of evidence of an offense not charged by

the grand jury." United States v. Fornia-Castillo,

(1st Cir. 2005) (quoting United States v. Dunn,

(1st Cir. 1985)).

Here, the introduction of the three firearms found in

the Ford Taurus did not alter the terms of the indictment. The

evidence of these guns was properly admitted because they tended

to prove both Counts Two and Three. See United States v. Muñoz-

Franco,

, 65 (1st Cir. 2007) (concluding no constructive

amendment occurred from admission of evidence because the

"evidence was directly relevant to the charges . . . and was not

outside the scope of the original indictment").

"[T]he nearby presence of an illegal gun" can support

the inference that a defendant intended to distribute a controlled

- 12 - substance. United States v. Bobadilla-Pagán,

(1st

Cir. 2014); see United States v. Fernández-Santos,

(1st Cir. 2017) (stating that "the presence of firearms" is a

relevant factor in "determining whether a defendant had an intent

to distribute" (quoting United States v. Cortés-Cabán,

(1st Cir. 2012))). Count Two charged possession with intent to

distribute heroin, and Count Three charged that McBride carried

and used the Kel-Tec pistol during and in relation to, and

possessed it in furtherance of, that drug trafficking offense. To

prove both counts, the government needed to put on evidence

demonstrating McBride's intent to distribute. The three firearms

in the Ford Taurus tended to show that McBride had the requisite

intent. As such, the evidence of the three firearms was within

the scope of the original indictment and did not constitute a

constructive amendment. See United States v. Lnu,

(1st Cir. 2008) (concluding there was no constructive amendment

because challenged evidence and closing statements "helped to

establish that [the defendant] had the requisite mens rea to be

convicted of the crime charged"); United States v. Fisher,

(1st Cir. 1993) (concluding there was no constructive

amendment because "[t]he evidence admitted . . . pertained

- 13 - directly to [the charges for which the defendant was convicted,]

and to no other[] charges").3

As to the government's closing arguments, there was also

no constructive amendment of the indictment. As said, the three

firearms tended to prove Counts Two and Three. The government

permissibly summarized this evidence in closing and stated that it

supported Count Two. See Valdés-Ayala,

. Further,

the government made clear from the beginning of the closing

argument that the Kel-Tec pistol was the firearm charged in Count

Three. In discussing the evidence supporting Count Three, the

government only referenced the Kel-Tec pistol. In rebutting

defense counsel's argument that McBride was only caught with a

3 McBride relies heavily on the Seventh Circuit case United States v. Leichtnam,

(7th Cir. 1991). In Leichtnam, the indictment charged that the defendant "did knowingly use and carry a firearm, to wit: a Mossberg rifle, Model 250CA with no serial number, during and in relation to . . . drug trafficking."

(alteration in original). At trial, the government introduced two other guns and the jury "received an instruction, tendered by the government, that it could convict on count two if convinced that [the defendant] had used 'a firearm' -- in effect, any one of the three."

. The Seventh Circuit stated that this constituted an amendment of the indictment.

. This circuit has not adopted such a rule and further, that case is factually different. In Leichtnam, the two uncharged guns were found elsewhere in the defendant's house while the charged rifle was found in a closet with narcotics and drug paraphernalia.

at 380 n.2. The Assistant United States Attorney who tried the case himself stated that he "felt that [the two uncharged guns] were sufficiently attenuated from the drug evidence that it would be inappropriate to charge [Leichtnam] with those two guns."

. But here, the three uncharged guns were all found inside the same vehicle as drug paraphernalia and the heroin in McBride's pocket.

- 14 - firearm and heroin by coincidence, the government emphasized the

circumstances tending to show that this was not a coincidence --

the firearms present in the car tended to show that McBride was

engaged in drug trafficking. These comments did not alter the

terms of the indictment.

Finally, the jury instructions did not constructively

amend the indictment. The district court's jury "instructions

must be evaluated not in isolation but in the context of the entire

charge." Jones v. United States,

(1999). It is

true, as McBride points out, that the district court did not

expressly instruct the jury that it could only convict McBride of

Count Three if it determined that he "carried and used" the Kel-

Tec pistol specifically, not the three other firearms. But not

only did McBride never request such an instruction, the district

court did tell the jury to only consider the crimes charged in the

second superseding indictment, which expressly stated that Count

Three was based on the Kel-Tec pistol. Further, the verdict form

explicitly referenced the second superseding indictment. Taken in

context and "[i]n light of our long-standing presumption that

jurors follow instructions," United States v. Spencer,

(1st Cir. 2017), the instruction's omission of an explicit

- 15 - reference to the Kel-Tec pistol did not constructively amend the

indictment.4

B. The Jury Verdict on Count Three and the Special Interrogatory Answer Were Not Inconsistent

McBride further argues that his conviction on Count

Three should be vacated because the verdict and the special

interrogatory answer were "irreconcilably inconsistent." McBride

did not raise this issue at the district court but even assuming

favorably to him that it is preserved, the argument fails.

Generally, "inconsistent findings are 'not grounds for

reversing a conviction.'" United States v. Monteiro,

(1st Cir. 2017) (quoting United States v. Vizcarrondo-

Casanova,

(1st Cir. 2014)). "Inconsistent

verdicts 'may be the result of [jurors'] lenity, coupled with the

Government's inability to invoke review'" and as a result, "the

best course to take is simply to insulate jury verdicts from review

on this ground." United States v. Rios-Ortiz,

, 317

4 The government also argues that other circuits have stated that if information included in an indictment is not an essential element of the offense, it does not cause a constructive amendment for such information not to be proven at trial exactly as stated in the indictment. See United States v. Redd,

(4th Cir. 1998); United States v. McIntosh,

(8th Cir. 1994); United States v. Robison,

(6th Cir. 1990); see also United States v. Garcia-Paz,

(9th Cir. 2002). There is no need for us to address the issue.

- 16 - (1st Cir. 2013) (alteration in original) (quoting United States v.

Powell,

(1984)).

There was no irreconcilable inconsistency. The jury

could have found that McBride carried and used the Kel-Tec pistol

during and in relation to, and possessed it in furtherance of,

drug trafficking but that he did not discharge it. Discharge of

the firearm is not required for a complete § 924(c) offense. See

Dean v. United States,

(2009) ("The principal

paragraph [of § 924(c)] defines a complete offense and the

subsections 'explain how defendants are to be sentenced.'"

(quoting Harris v. United States,

(2002))). It

is possible to give effect to both the "guilty" verdict and the

answer to the special interrogatory.

McBride's reliance on United States v. Pierce,

(2d Cir. 2019), is misplaced. There, the Second Circuit

affirmed the district court's judgment of acquittal due to

irreconcilable inconsistency.

. The defendant was

charged with conspiracy to possess with intent to distribute and

conspiracy to distribute cocaine, cocaine base, heroin, and

marijuana.

. The jury found the defendant guilty of

this charge.

. The verdict form also asked two special

interrogatories as to the weight of each substance.

On each

interrogatory, the jury answered that the government had "not

proven" that the defendant "conspired to possess with intent to

- 17 - distribute" or "conspired to distribute" the specific substance.

The Second Circuit concluded that the guilty verdict and the

"not proven" interrogatory answers were "metaphysically

impossible" to reconcile.

.

There is no inconsistency within Count Three here at

all. Answering "[n]o" to the special interrogatory did not negate

the "guilty" verdict on Count Three because the government did not

need to prove that McBride discharged the Kel-Tec pistol to convict

him of Count Three. The guilty verdict is entirely consistent

with the special interrogatory answer.5

Affirmed.

5 McBride also argues that the jury's verdict is inconsistent because "the jury could not have found Mr. McBride guilty of possessing the Kel-Tec 9, but not discharging it," as he testified at trial that he possessed a Kel-Tec gun that he discharged. But, a jury has an "unreviewable power . . . to return a verdict of not guilty for impermissible reasons," Harris v. Rivera,

(1981), so we may not invalidate the jury's finding on Count Three based on its answer to the interrogatory.

- 18 -