In United States v. Oscar, No. 14-14584 (Dec. 20, 2017) (Hull, Jordan, Boggs), the Court affirmed two defendant's drugs/firearm convictions but vacated one of their ACCA sentences.
First, the Court concluded that the district court's answer to a jury note misstated the law of possession by allowing the jury to convict him of constructive or joint possession without having knowledge of the firearm. The district court's initial instruction accurately explained the law of actual/constructive possession, and the supplemental instruction must be viewed in context. Furthermore, the court's instruction of constructive possession -- as when the defendant has both the power and intention to take control of the firearm -- did not remove the knowledge requirement, because a defendant must necessarily have knowledge of a firearm in order to have an intention to take control over it later.
Second, the Court rejected a defendant's argument that the government committed prosecutorial misconduct by introducing evidence that another drug dealer was deceased. That fact was relevant, the Court concluded, to explain why he was not charged or testifying at trial, even though he facilitated all of the defendants' crimes. And any prejudice was mitigated by a curative instruction making clear that the defendants had nothing to do with the death. The Court also found no misconduct by characterizing a defense witness as a liar given her inconsistent testimony.
Third, the Court rejected the defendants' arguments that the court erred in giving an Allen charge, dismissing a juror, and seating an alternate juror. The Court found that the Allen charge was not coercive in substance because it was the pattern instruction; nor was its timing coercive, because it was given in response to a juror's comments indicating that the deliberations had stalled. That the deliberations continued for several more days, and the jury ultimately acquitted one defendant of two counts, reflects its lack of coercive effect The Court also found no abuse of discretion in dismissing a juror because, while courts should be cautious about doing so, this juror stated that she was biased, criticized the system, became emotional, and admitted that she could not follow the law. Last, the Court concluded that the court did not err by replacing that juror with an alternate instead of allowing deliberations to proceed with 11 jurors. Although the jury had already been deliberating for two days, and substitution after deliberations is not favored, the Court concluded that there was no abuse of discretion in light of the court's initial instructions and post-substitution instruction to begin deliberations anew. In addition, the newly constituted jury deliberated for nine more hours and acquitted a defendant of two counts, reflecting a proper deliberation, and the court actually substituted two alternate jurors which theoretically may have decreased the chances of conviction.
Fourth, the Court found no abuse of discretion in denying one defendant's motion to sever because all the defendants shared a criminal network, and any potential spillover effect regarding drug crimes was mitigated by the court's two cautionary instructions, and the undercover agent's testimony that this defendant did not try to sell him drugs. And the fact that the jury convicted one defendant of some crimes but not others reflects the jury's individual examination of each crime.
Finally, the Court vacated one of the defendant's ACCA sentence because it was based on Florida burglary, which is not a violent felony under circuit precedent.