52 F. 3d 78 - United States v. Milton

Appellant, Charles Christopher Milton, appeals his conviction for possession of a firearm by a convicted felon, see 18 U.S.C. Sec. 922(g)(1).1 We affirm.

* On March 23, 1993, Officer Samuel Sweet of the Anne Arundel County Police Department was on vehicular patrol in the area of Route 648 and Interstate 695 in Glen Burnie, Maryland, when he observed a 1985 blue Renault Alliance travelling on Interstate 695, weaving in and out of its lane.2 Officer Sweet stopped the vehicle, approached the driver (later identified as Jothan Schnella), and asked him for his driver's license and registration. The driver responded that he had neither his driver's license nor the registration. Officer Sweet then asked the driver for identification and the driver responded that he had none. At that point, Officer Sweet asked the driver to exit and walk to the rear of the vehicle; the driver complied. Once at the rear of the vehicle, the driver told Officer Sweet that his name was Jothan Schnella. Officer Sweet then went over to the passenger side of the car and asked the only passenger (later identified as Milton) in the vehicle what the driver's name was. The passenger replied that the driver's name was "Charles Milton."

Officer Sweet returned to the rear of the vehicle and informed the driver of the discrepancy in identification. The driver insisted his name was Jothan Schnella and told Officer Sweet that he did not have a Maryland driver's license and that his New Jersey driver's license had been suspended. Officer Sweet then placed Schnella under arrest for driving with a suspended license. After Milton was removed from the vehicle, Officer Sweet conducted a search of the vehicle, during which he recovered a Smith & Wesson 9 mm. semi-automatic handgun from the glove compartment.

Milton was arrested and charged, inter alia, with illegal possession of a handgun in violation of Maryland law.3 After Officer Sweet advised Milton of his Miranda4 rights, Milton admitted he owned the firearm.

On January 25, 1994, a federal Grand Jury sitting in the District of Maryland returned a one-count indictment charging Milton with possession of a firearm by a convicted felon, see 18 U.S.C. Sec. 922(g)(1). The case went to trial5 and the jury returned a verdict of guilty. The district court sentenced Milton to 120 months' imprisonment, and Milton noted a timely appeal.

Prior to trial, Milton moved to suppress the firearm, contending that the warrantless search of the vehicle violated his Fourth Amendment rights. The district court held that the warrantless search was justified as a search incident to a lawful arrest and a protective search under the principles set forth in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

All warrantless searches "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnote omitted). One such exception is a search incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471-72, 38 L.Ed.2d 427 (1973). In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460, 101 S.Ct. at 2864 (footnote omitted). Under Belton, "the police may also examine the contents of any containers found within the passenger compartment." Id.; see also United States v. McCraw, 920 F.2d 224, 228 (4th Cir.1990) ("Incident to an automobile occupant's lawful arrest, police may search the passenger compartment of the vehicle and examine the contents of any containers found within the passenger compartment."). "Containers," as defined in Belton, includes the glove compartment. Belton, 453 U.S. at 460 n. 4, 101 S.Ct. at 2864 n. 4. Belton applies "even if the arrestee has been separated from [the vehicle] prior to the search of the passenger compartment." United States v. Mans, 999 F.2d 966, 968-69 (6th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 567, 126 L.Ed.2d 467 (1993).

In this case, the vehicle was searched after Schnella had been removed from the vehicle and arrested for driving with a suspended license. Once Schnella was placed under arrest, Officer Sweet was free to conduct a search of the interior compartment of the vehicle, including the glove compartment. See Belton, 453 U.S. at 460-61, 101 S.Ct. at 2864-65; McCraw, 920 F.2d at 228. Accordingly, Milton's motion to suppress was properly denied by the district court.6

Prior to trial, Milton, having stipulated to the existence of a qualifying prior felony conviction, moved in limine to exclude from the jury's consideration evidence concerning the existence of that conviction. Milton's motion in limine sought to have the jury consider only the question of possession, and not hear any evidence on or consider the fact that Milton had previously been convicted of a felony. Milton's motion in limine went far beyond a mere bifurcation in the presentation of evidence. By seeking to exclude evidence of his felony status at the trial, Milton sought to relieve the government of its burden of proving to the jury, beyond a reasonable doubt, that at the time he possessed the firearm, he had a qualifying previous felony conviction. The district court denied the motion. On appeal, Milton contends this ruling constitutes reversible error. We disagree.

Numerous courts have held that if a defendant is charged with being a felon-in-possession of a firearm, a district court does not have the power to instruct the jury to consider only the possession element of the offense. See, e.g., United States v. Barker, 1 F.3d 957 (9th Cir.1993), amended, 20 F.3d 365, 366 (9th Cir.1994); United States v. Gilliam, 994 F.2d 97, 101-02 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 335, 126 L.Ed.2d 280 (1993); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2984, 125 L.Ed.2d 680 (1993); United States v. Collamore, 868 F.2d 24, 27-29 (1st Cir.1989); United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978). These decisions are predicated on the notion that removing the prior felony element from the jury's consideration would be confusing to a jury inasmuch as simple possession of a firearm, without more, is not a crime. See, e.g., Barker, 20 F.3d at 366; Gilliam, 994 F.2d at 100-01; Collamore, 868 F.2d at 28. As the court in Collamore explained:

[W]hen a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime.... Possession of a firearm by most people is not a crime. A juror who owns or who has friends and relatives who own firearms may wonder why Collamore's possession was illegal. Doubt as to the criminality of Collamore's conduct may influence the jury when it considers the possession element.

Id.

Additionally, permitting the removal of the prior felony element from the jury's consideration would have the impermissible effect of allowing the district court to modify a criminal statute enacted by Congress by eliminating through stipulation one of the elements of the crime. Gilliam, 994 F.2d at 102. As the Second Circuit stated in Gilliam: "Whatever the basis of the reasoning, be it Congressional mandate or the duty of the jury to make a totally informed judgment, there is virtual judicial unanimity in the belief that the jury must be informed of all the elements of the crime charged." Id. Indeed, Milton's argument is contrary to our well-established precedent that a district court must instruct a jury on each and every essential element of an offense. See, e.g., United States v. McLamb, 985 F.2d 1284, 1293 (4th Cir.1993) (failure to instruct the jury on any essential element of an offense constitutes plain error). Furthermore, "[l]imiting the jury's consideration of required elements of an indicted offense is contrary to the presumption against special verdicts in criminal cases." Barker, 20 F.3d at 366. In short, removal of the prior felony element from the jury's consideration "prevents the government from having its case decided by the jury, and changes the very nature of the charged crime." Id. We, therefore, hold that, in a felon-in possession case such as this, the district court must instruct the jury that the government must prove beyond a reasonable doubt that at the time the defendant possessed the firearm he had a qualifying previous felony conviction, that is a prior conviction for an offense punishable by a term of imprisonment exceeding one year. Accordingly, Milton's argument that the district court committed reversible error in denying his motion in limine must be rejected.7

Finally, Milton contends that the district court abused its discretion in denying his request for a missing witness instruction. We have reviewed this assignment of error and find it to be without merit inasmuch as the "missing witness," Jothan Schnella, was equally available to both sides. See United States v. Brooks, 928 F.2d 1403, 1412 (4th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991). Accordingly, for the reasons stated, Milton's conviction for possession of a firearm by a convicted felon, see 18 U.S.C. Sec. 922(g)(1), is affirmed.

AFFIRMED.