In U.S. v. Dortch, No. 10-14772 (Sept. 11, 2012), the Court affirmed convictions for unlawful possession of firearms by a convicted felon, possession of marijuana with intent to distribute, and use of a firearm during a drug-trafficking offense.
During the trial, the district court did not allow the government to introduce evidence of some of Dortch’s prior convictions, because they were too old or too prejudicial. However, for deliberations, the jury was given an unredacted copy of the indictment, which listed the prior offenses. The Court held that the error was harmless, because Dortch stipulated that he was a convicted felon, and the evidence supporting the convictions was "overwhelming." In addition, the district court instructed the jury that the indictment was not evidence.
On plain error review, the Court rejected the argument that the district court committed reversible error because it constructively amended the indictment when it instructed the jury that it could convict Dortch of firearm possession without specifying that it must find that he possessed the specific firearms identified in the indictment. The Court noted that there was no Supreme Court or Eleventh Circuit precedent holding that a constructive amendment occurs when a district court instructs the jury that it may convict for possession of any firearm. The Court therefore found that it "need not address whether a constructive amendment amounts to per se reversible error when the defendant fails to object at trial, because even if we assume the district court erred, the error was not plain."
Finally, the Court rejected the argument that the district court abused its discretion when it excluded evidence that Dortch was acquitted of state charges relating to the same drug transactions at issue. "Judgments of acquittal are hearsay."
