     Case: 11-20711   Document: 00512222886     Page: 1   Date Filed: 04/26/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                  April 26, 2013

                                 No. 11-20711                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff – Appellee
v.

FRED JOSEPH COOPER,

                                           Defendant – Appellant



                Appeals from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, DAVIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Fred Joseph Cooper appeals on various grounds his conviction for a
number of drug and firearms offenses. We AFFIRM.
                       FACTS AND PROCEEDINGS
      After police officers in Houston, Texas, observed Cooper participating in
suspected drug deals in the parking lot of a gym and a nearby house, they
arrested Cooper and his suspected counter-party, Troy Booker, in separate
traffic stops. The arresting officers found $1,724 in cash on Cooper’s person and
in his vehicle, as well as approximately 250 grams of powder cocaine in his
vehicle. The officers found a similar quantity of powder cocaine in Booker’s
vehicle. Executing a search warrant at Cooper’s house, police found close to 700
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grams of powder cocaine, an additional amount of crack cocaine, drug
distribution paraphernalia, and over $45,000. They also found three firearms
in the vicinity of the drugs and money: a .22 caliber revolver, a .45 caliber
semiautomatic pistol, and a .30-30 caliber rifle.
      Cooper was charged by superceding indictment with: possession with
intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C.
§ 841(a)(1) (Count 1); possession with intent to distribute five grams or more of
cocaine base, also in violation of 21 U.S.C. § 841(a)(1) (Count 3); possession of
two firearms, the .45 and the .30-30, “during and in relation to . . . drug
trafficking crime[s],” in violation of 18 U.S.C. §§ 924(c)(1)(A)(i); (c)(1)(C)(i)
(Counts 2 and 4); and possession of all three firearms as a felon in violation of
18 U.S.C. § 922(g)(1) (Count 5).
      Cooper proceeded to trial, and the jury convicted him of all five charges.
The district court sentenced him to 121 months’ imprisonment on each of Counts
1 and 3, 60 months’ imprisonment on Count 2, 120 months’ imprisonment on
Count 5, and 300 months’ imprisonment on Count 4. With the sentences on
Counts 1 and 3 ordered to run concurrently, this verdict resulted in a total
sentence of 481 months’ imprisonment. Cooper timely appeals.
                                   DISCUSSION
      On appeal, Cooper raises five distinct issues: (A) he challenges the
sufficiency of his indictment with respect to Counts 2 and 4; (B) he charges
improper constructive amendment of his indictment with respect to the same
two counts by the district court in its jury instructions; (C) he alleges an abuse
of discretion in the district court’s failure to dismiss a juror challenged for cause;
(D) he asserts that the district court erred in determining that he was not
entitled to a lesser-included-offense jury instruction on Count 3; (E) he claims
that the Government violated his rights under the Fifth Amendment’s Due
Process Clause when it questioned a police officer at trial about whether Cooper

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had consented to a warrantless search of his home; and (F) he contends that the
Government failed to meet its evidentiary burden on his firearms convictions as
it did not prove that the firearms he possessed were functional.
      A. The sufficiency of the indictment
               1. Standard of review
      The sufficiency of an indictment is a legal question reviewed de novo.
United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011). An indictment is
legally sufficient if (1) “each count contains the essential elements of the offense
charged,” (2) “the elements are described with particularity,” and (3) “the charge
is specific enough to protect the defendant against a subsequent prosecution for
the same offense.” United States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999)
(quoting United States v. Lavergne, 805 F.2d 517, 521 (5th Cir. 1986)).
               2. Analysis
      18 U.S.C. § 924(c)(1)(A) proscribes two different types of conduct: the use
or carrying of a firearm “during and in relation to any crime of violence or drug
trafficking crime” and the possession of a firearm “in furtherance of any such
crime.” § 924(c)(1)(A). Counts 2 and 4 of Cooper’s indictment, which alleged
violations of 18 U.S.C. § 924(c), were each captioned “Possessing a Firearm in
Furtherance of a Drug Trafficking Crime” (emphasis added) but alleged that
Cooper had “knowingly possessed a firearm . . . during and in relation to a drug
trafficking crime” (emphasis added).
      Cooper argues that mere knowing possession of a firearm “during and in
relation to” a drug trafficking crime does not violate § 924(c), unless that
possession is in furtherance of a drug trafficking crime. He contends that,
because the text of his indictment does not allege the “in furtherance” prong, his
indictment improperly combined elements of the two different types of conduct
proscribed by § 924(c) and was legally insufficient with respect to the two counts
in question.

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      This argument has some support in our caselaw. In United States v.
McGilberry, we stated that an indictment charging a defendant with a § 924(c)
violation for having “knowingly possess[ed] a firearm . . . during and in relation
to a drug trafficking crime” was insufficient as it had failed “to list the essential
elements of any criminal conduct” under § 924(c). 480 F.3d 326, 328-29 (5th Cir.
2007).
      We distinguish this case from McGilberry, though, on the basis of the
captions in Cooper’s indictment, which correctly stated the charged offense
conduct as “Possessing a Firearm in Furtherance of a Drug Trafficking Crime.”
We have previously held that captions can supply an element of a charged
offense, such as the location of the offense conduct, when that element is
otherwise missing from the text of the indictment. See United States v. Arteaga-
Limones, 529 F.2d 1183, 1188-89 (5th Cir. 1976). Moreover, “[t]he validity of an
indictment is governed by practical, not technical considerations,” United States
v. Ramos, 537 F.3d 439, 459 (5th Cir. 2008) (quoting United States v. Crow, 164
F.3d 229, 235 (5th Cir. 1999)), and “[t]he basic purpose behind an indictment is
to inform a defendant of the charge against him,” United States v. Hoover, 467
F.3d 496, 499 (5th Cir. 2006).
      To the extent that the descriptions of the charged offense conduct in
Cooper’s indictment were ambiguous, we hold that any such ambiguity was
cured by the captions. As a result, Cooper’s indictment, viewed “practical[ly],”
Ramos, 537 F.3d at 459, contained all the elements of the offenses charged,
described them with the requisite particularity, and was specific enough so as
to preclude any double jeopardy concerns, see Threadgill, 172 F.3d at 366. We
decline to reverse Cooper’s convictions on Counts 2 and 4.
      B. Constructive amendment of the indictment
             1. Standard of review



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      “The Fifth Amendment allows criminal prosecutions only on the basis of
an indictment and only a grand jury may amend an indictment.” United States
v. Gonzales, 436 F.3d 560, 577 (5th Cir. 2006). “[A]n action of either the judge
or prosecutor [that] allows the jury ‘to convict the defendant upon a factual basis
that effectively modifies an essential element of the offense charged’” constitutes
an improper constructive amendment and is grounds for reversal. See id.
(quoting United States v. Holley, 23 F.3d 902, 912 (5th Cir. 1994)).
            2. Analysis
      The district court’s instruction to the jury required that it find that
Cooper’s possession of a firearm had been “in furtherance of” a drug trafficking
offense in order to convict him on Counts 2 and 4. Cooper asserts that this
constituted a constructive amendment of his indictment, in light of the text of
the indictment that referred to possession of a firearm “during and in relation
to a drug trafficking crime.” As stated above, we view the indictment as properly
setting out the charged offense conduct, see supra Part A.2, and as a result we
do not view the district court’s instruction as deviating from the indictment.
Even if it did, “an instruction which does not broaden the possible bases of
conviction beyond what is embraced in the indictment does not constitute a
constructive amendment.” Gonzales, 436 F.3d at 577. Since the district court’s
instructions in no way broadened the bases of conviction beyond the indictment,
they did not amount to a constructive amendment, and Cooper’s argument fails.
      C. Failure to dismiss juror
            1. Standard of review
      “The Sixth Amendment right to an impartial jury requires the exclusion
of a potential juror if his ‘views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.’” United States v. Hall, 152 F.3d 381, 406 (5th Cir. 1998) (quoting
Wainwright v. Witt, 469 U.S. 412, 424 (1985)). This court reviews a district

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court’s decision on a motion to strike a juror as biased for abuse of discretion
only. Id at 407.
             2. Analysis
      At voir dire, Cooper moved to strike a juror for cause, the district court
denied the motion, and it then denied him an additional peremptory strike. In
the 1980’s, two black men had burgled the juror’s home and assaulted his wife.
Cooper’s counsel questioned the juror as to whether the race of the burglars
would impact his treatment of Cooper, who is also black. The juror’s response
was that he “would try to be impartial.” Cooper contends that this answer was
equivocal, and he notes that the Ninth Circuit has held similar equivocation to
be a basis for a finding of implied bias and reversal of a district court’s denial of
a motion to strike a juror. See United States v. Gonzalez, 214 F.3d 1109, 1114
(9th Cir. 2000).
      The district court inquired extensively into any possible prejudices that
the juror in question might have had as a result of the burglary incident. During
this line of questioning, the juror noted that he had served in the military with
blacks and knew that “their blood is red too.” He further stated that he always
tries to be racially impartial, that he “tr[ies] to live [his] life like that where I
don’t let [racial bias] enter in,” and that he doesn’t “care what race it is or what
uniform they’re wearing, people are people.” As a result of this colloquy, the
district court declined to strike this juror for cause “because of his sincere and
. . . quite credible statements that he did not think [racial animus] would bias
him or affect his judgment in any way.”
      In assessing a motion to strike a juror for cause, the district court’s
“predominant function in determining juror bias involves credibility findings
whose basis cannot be easily discerned from an appellate record.” Wainwright,
469 U.S. at 429. “[D]eference must be paid to the trial judge who sees and hears
the juror.” Id. at 426. In light of this deferential standard of review and the

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substantial support in the record for the district court’s finding that the juror in
question could discharge his duties without bias, we decline to find an abuse of
discretion in the district court’s denial of Cooper’s motion to strike the juror.
        D. Lesser-included-offense instruction
               1. Standard of review
        “‘Two independent prerequisites’ must be met before a defendant is
entitled to an instruction on a lesser-included offense: ‘(1) the elements of the
lesser offense must be a subset of the elements of the charged offense; and (2) the
evidence at trial must be such that a jury could rationally find the defendant
guilty of the lesser offense, yet acquit him of the greater.’” United States v.
Harrison, 55 F.3d 163, 166 (5th Cir. 1995) (alteration omitted) (quoting United
States v. Browner, 889 F.2d 549, 550-51 (5th Cir. 1989)). We review the district
court’s determination with respect to the first prong of this test de novo and its
determination with respect to the second prong for abuse of discretion. Id. at
167.
               2. Analysis
        Cooper proposed a lesser-included-offense jury instruction to the district
court on Count 3, which charged him with possession with intent to distribute
more than fifty grams of crack cocaine. His proposed instruction was for simple
possession of crack cocaine, which we have held is a lesser-included offense of
possession with intent to distribute. United States v. Lucien, 61 F.3d 366, 372-74
(5th Cir. 1995).        The district court nevertheless declined to give such an
instruction.
        The evidence supporting Count 3 included a massive “cookie” of crack
cocaine weighing approximately 42 grams and drug manufacturing and
distribution paraphernalia, all found at Cooper’s house in proximity to firearms.
The Government presented unrefuted testimony that an individual dose of crack
cocaine is approximately .1 gram, that wholesale dealers typically sell crack

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cocaine to street-level dealers in slabs weighing approximately five grams, that
the street value of the crack cookie found at Cooper’s home was approximately
$4,200, and that drug dealers often keep firearms close to their drugs. We have
previously found no abuse of discretion in a district court’s declining to give a
lesser-included-offense instruction for simple possession in a possession-with-
intent-to-distribute case where police had found crack cocaine with a street value
of approximately $3,000 located in proximity to firearms and cash. United
States v. Harrison, 55 F.3d 163, 167-68 (5th Cir. 1995). Given the evidence
presented at trial, we similarly see no abuse of discretion in the district court’s
holding that no jury could rationally find Cooper guilty of only simple possession.
      E. Fifth Amendment
            1. Standard of Review
      We address Due Process concerns arising out of improper statements by
the Government at trial using a two-step framework. We first assess whether
the Government’s statement was improper and then determine whether the
statement “prejudiced the defendant’s substantive rights.” United States v.
Raney, 633 F.3d 385, 394 (5th Cir. 2011) (quoting United States v. Munoz, 150
F.3d 401, 415 (5th Cir. 1998)). “The prejudice determination involves ‘(1) the
magnitude of the statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of the defendant’s guilt.’”
Id. at 394 (quoting United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995)).
            2. Analysis
      At trial, the Government asked one of its witnesses, a police officer who
had been involved in the traffic stop that led to Cooper’s arrest, whether he had
“ask[ed] Mr. Cooper if he would give you a consent to search” his house. Cooper
objected on the grounds that this was an impermissible inquiry into Cooper’s
invocation of his Fourth Amendment right not to consent to a search, and he now
argues that this question requires reversal of his convictions.

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      Assuming that the Government’s question, if answered, would have
implicated Cooper’s substantial rights, see United States v. Runyan, 290 F.3d
223, 249 (5th Cir. 2002) (assuming without deciding that a question regarding
a defendant’s refusal to consent to a warrantless search would raise
constitutional issues, and noting that all other circuits who have addressed the
issue have held that such a question does), we nevertheless hold that the
question did not prejudice Cooper.      Cooper’s attorney objected before the
Government’s witness could answer the question, hence the jury never heard
whether Cooper had refused permission for a warrantless search.              The
Government made no further mention of the request that Cooper consent to a
warrantless search and certainly made no effort to encourage the jury to draw
an inference as to Cooper’s guilt on the basis of his refusal to give consent. We
have previously held a similar question about a defendant’s refusal to give
consent for a warrantless search to be harmless error, despite having been
actually answered by the witness, where “[t]he prosecution neither commented
on [the defendant’s] refusal to consent . . . nor asked the jury to draw any
inferences from this refusal.” Id. at 250.
      Moreover, the evidence supporting Cooper’s convictions was substantial,
including as it did large quantities of drugs seized along with firearms and
paraphernalia in a valid warrant search. “Strong evidence of guilt can render
the admission of evidence regarding a defendant’s refusal to consent to a
warrantless search ‘harmless.’” Id. at 250 (quoting United States v. Moreno, 233
F.3d 937, 941 (7th Cir. 2000)).
      Because of the extremely limited impact of the objected-to question on the
trial proceedings and the substantiality of the evidence presented, we conclude
that the Government’s question did not prejudice Cooper’s substantive rights
and was, if erroneous at all, harmless error.



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      F. Firearms functionality
            1. Standard of review
      “When the defendant challenges the sufficiency of the evidence, ‘the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United States v.
Uvalle-Patricio, 478 F.3d 699, 701 (5th Cir. 2007) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
            2. Analysis
      Cooper contends that the evidence supporting his convictions on Counts
2, 4, and 5, all relating to his possession of firearms, was insufficient, as the
Government introduced no evidence tending to show that the firearms in
question were actually capable of firing. The relevant statutory definition of
“firearm,” though, is “any weapon (including a starter gun) which will or is
designed to or may readily be converted to expel a projectile by the action of an
explosive . . . [or] the frame or receiver of any such weapon.” 18 U.S.C.
§ 921(a)(3) (emphasis added). Under this definition, we have consistently held
that inoperable firearms can support convictions equivalent to Cooper’s. See,
e.g., United States v. Ruiz, 986 F.2d 905, 910 (5th Cir. 1993).
      The Government presented testimony from a Special Agent with the
Bureau of Alcohol, Tobacco, Firearms and Explosives. The agent in question,
who was extensively credentialed at trial, testified as to the provenance of the
three firearms found in Cooper’s house and examined them in open court. The
Government also presented evidence that, on the day they were seized, these
firearms were found loaded and in proximity to Cooper’s drugs and
paraphernalia. Based on this evidence, we conclude that a rational jury could
find that Cooper did in fact possess “firearms,” as defined by § 921(a)(3), and we
reject Cooper’s challenge to the sufficiency of the evidence on these counts.

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                          CONCLUSION
  For the foregoing reasons, we AFFIRM the judgment of the district court.




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