                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0604n.06
                            Filed: October 7, 2008

                                             No. 07-1378

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
               Plaintiff-Appellee,             )       ON APPEAL FROM THE UNITED
                                               )       STATES DISTRICT COURT FOR THE
v.                                             )       WESTERN DISTRICT OF MICHIGAN
                                               )
WILLIS BROCK,                                  )       OPINION
                                               )
               Defendant-Appellant.            )



       Before: BATCHELDER and GILMAN, Circuit Judges, and ZOUHARY, District Judge*



       JACK ZOUHARY, District Judge. Defendant Willis Brock (“Brock”) appeals his jury

conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He

claims the Government illegally modified the indictment by constructive amendment or variance by

broadening the time period when he allegedly possessed the two guns in question. For the following

reasons, we AFFIRM the conviction.




________________________

* The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 07-1378
United States v. Brock


                                         BACKGROUND

       On March 15, 2006, an officer from the Niles, Michigan Police Department stopped Brock

at a Quick Mart gas station for failure to use a right turn signal (JA 130). Brock was both the driver

and the registered owner of the car (JA 130-31). Two passengers were also in the car, Adam Papoi

and Bruce Benman (JA 131). The officer observed Brock acting suspiciously and asked for

permission to search the car. Brock consented (JA 132). The officer opened the trunk but found

nothing (JA 132-33).

       After removing Brock and the others from the car, the officer found a plastic grocery bag on

the back seat. Inside the bag was clothing and two loaded handguns, one a Taurus .44 magnum and

the other a Colt .38 special (JA 133-34). The bag also held two boxes of ammunition, a State of

Indiana Notice of Appointment in Brock’s name, and several bank receipts (JA 137-38, 141-51).

These receipts carried Brock’s bank account number (JA 149-51).

       Following Brock’s arrest, he waived his Miranda rights. During the subsequent interview,

he told detectives that the night before, he and Papoi had handled the guns while at the Hickory Inn

Motel (JA 156-59). Brock said his fingerprints would most likely be found on the guns, but the guns

belonged to Papoi (JA 156-57). Brock explained he told Papoi to get rid of the guns before they left

the motel. At trial, Papoi testified he believed he had seen Brock once with what looked like the

Taurus .44 magnum while staying with Brock at his girlfriend’s home, but he had not seen the guns

in the motel room on March 14 (JA 163-67).




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No. 07-1378
United States v. Brock


       David Deyber, the registered owner of the Colt .38, testified he purchased the gun for Brock

(JA 222-31). He was unable to recall whether he had purchased the gun in May 2004 or July 2004

(JA 237-39). His brother, Michael Deyber, was the registered owner of the Taurus .44 (JA 176-77),

and he purchased this handgun for Brock in September 2004 (JA 172-77).

       On September 12, 2006, Brock was indicted in federal court for violation of 18 U.S.C. §

922(g)(1), felon in possession of a firearm (JA 282). Brock initially pled guilty (JA 92-117), but the

district court rejected the plea because of concern over the sufficiency of Brock’s “knowing and

voluntary possession” (JA 118-24). At trial, the jury found Brock guilty of the sole charge of the

indictment. The court then sentenced Brock to 42 months in prison, 3 years of supervised release,

a fine of $1,800, and a $100 special assessment (JA 14-19). Following sentencing, Brock filed this

timely appeal.

                                            ANALYSIS

       Standard of Review

       Generally, this Court reviews issues of constructive amendment to the indictment or variance

in the proofs under a de novo standard. United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998)

(citing United States v. Robison, 904 F.2d 365, 368 (6th Cir. 1990)). However, in circumstances

where the defendant fails to object to the issue at trial, this Court reviews the case under the plain-

error standard. United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006).

       Brock conceded at oral argument he made no objection to the alleged indictment

modification, and that the plain-error standard applies. Under this standard, Brock must show that:


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No. 07-1378
United States v. Brock


(1) there was an error, (2) the error was plain, and (3) the plain error affected a substantial right.

United States v. Thomas, 11 F.3d 620, 629-630 (6th Cir. 1993) (citing United States v. Olano, 507

U.S. 725, 732-736 (1993)). If Brock establishes these elements, then the Court must also determine

whether the plain error significantly affected the fairness, integrity, or public reputation of the trial.

Id.

        Constructive Modification

        There are two types of amendments to indictments -- actual and constructive modification.

United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). No actual amendment occurred in this

case.1 Therefore, the Court will only address constructive amendment of the indictment.

        Constructive amendment results “when the terms of the indictment are in effect altered by

the presentation of evidence and jury instructions which so modify essential elements of the offense

charged that there is substantial likelihood that the defendant may have been convicted of an offense

other than the one charged in the indictment.” Id. (citing United States v. Smith, 320 F.3d 647, 656

(6th Cir. 2003)). Constructive amendments are considered to be per se prejudicial. United States

v. Prince, 214 F.3d 740, 757 (6th Cir. 2000).

        Constructive amendment requires a discrepancy between the indictment and both the trial

evidence and the jury instructions. Budd, 496 F.3d at 521 (citing Smith, 320 F.3d at 646 (6th Cir.

2000)). The Court will first address the alleged discrepancy in the trial evidence.



1
 An actual amendment occurs when a prosecutor changes the text of the indictment. Id. (citing United States
v. Prince, 214 F.3d 740, 757 (6th Cir. 2000)). Brock does not make such a claim.

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No. 07-1378
United States v. Brock


       The indictment charges that “on or about March 15, 2006” Brock “did knowingly possess

one or more firearms” (JA 13). Brock argues the Government’s evidence identified three other

occasions when Brock allegedly possessed the guns, and that, during closing arguments, the

Government specifically broadened the scope of the indictment to include the evening of March 14,

2006 as a time period the jury could consider when deciding if Brock unlawfully possessed a gun.

       Adam Papoi, one of the passengers in Brock’s car, and who was with Brock at the Hickory

Inn Motel the night before, testified the clothing and paperwork found in the grocery bag on the back

seat belonged to Brock (JA 163). He also noted he had on previous occasions seen Brock with a “big

handgun,” but he did not see any guns during their stay at the motel (JA 163-66). Papoi’s testimony

was not presented to prove Brock actually possessed a gun on previous occasions, but instead to

prove the guns found in the car on March 15, 2006 belonged to Brock and were then in his

possession. Papoi’s testimony was not in conflict with the allegations in the indictment, but rather

included complementary details of who owned the guns.

       Michael Deyber, the registered owner of the Taurus revolver, testified Brock was with him

when he purchased the gun in September 2004 and that he gave Brock the gun a few days later (JA

172-79). Similarly, David Deyber, Michael’s brother, testified he purchased the Colt revolver for

Brock (JA 222-31), and gave the gun to Brock shortly thereafter (JA 237-39). The Government

introduced, and Brock stipulated to, ATF Forms 4473 showing both of these gun purchases were

made in 2004. These exhibits supplemented the Deybers’ testimony that they had purchased the

guns for Brock.


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No. 07-1378
United States v. Brock


        We find no discrepancy between this evidence and the indictment. The gun purchases in

2004, and the change in ownership between the Deybers and Brock, did not alter the essential

elements of the offense. Rather, they traced the chain of gun ownership. The evidence aided in

proving, as alleged in the indictment, that the guns found in the backseat of Brock’s car on March

15, 2006 were owned by Brock, creating a presumption of possession.

        Finally, during closing arguments, the Government told the jury that if Brock knowingly and

intentionally handled the guns while in the motel room, he is “guilty of actual possession.”2 While

the comment was improper, it did not reach the level of affecting a substantial right or causing a

miscarriage of justice. See United States v. Miller, 531 F.3d 340, 346 (6th Cir. 2008) (“[T]he plain

error doctrine is to be used sparingly, only in exceptional circumstances, and solely to avoid a

miscarriage of justice.”) (citations omitted). As the Supreme Court has noted, criminal defendants

are entitled “to a fair trial, not a perfect one,” and this passing comment during closing argument did

not affect the fairness of the proceedings. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).

        Additionally, any adverse impact of this one misstatement was mitigated by the court’s

curative instruction following the Government’s closing argument (JA 252):

        Members of the Jury, let me explain one thing that is not in the written instructions
        yet. “Intentional possession” means exactly what I said it meant in the jury
        instructions. What would not be intentional possession is if someone, for example,
        tossed the firearms to the defendant, and he didn’t want to handle them. In other


2
  This stray statement reads as follows: “He’s telling the detective -- this is the defendant’s own statement,
that he handled the firearms the night before . . . If you find that he handled these firearms and he knowingly
and intentionally handled these firearms, as he said to Detective Millan he did, he’s guilty of actual
possession.” (JA 246).

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No. 07-1378
United States v. Brock


       words, simply catching something and giving it back would not be intentional
       possession of the firearm. He must have wanted to have it in his hands and to have
       handled it, maybe looked at it or whatever.

       Brock therefore failed to prove there was a discrepancy between the indictment and the trial

evidence. Brock also failed to prove there was a discrepancy between the indictment and the jury

instructions. During oral argument, Brock conceded there was no jury instruction irregularity. And,

a record review confirms the district court correctly explained the elements of the offense and the

indictment (JA 300-01) which mirror the Pattern Jury Instructions approved by this Court. See Sixth

Circuit Pattern Criminal Jury Instructions, §§ 2.04, 12.01 (2005).

       Variance

       A variance occurs when “the charging terms [of the indictment] are unchanged, but the

evidence at trial proves facts materially different from those alleged in the indictment.” United

States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986) (citing United States v. Beeler, 587 F.2d 340,

342 (6th Cir. 1978)). This Court has noted the defining line between variances and constructive

amendments is “sketchy.” Budd, 496 F.3d at 521 (citing United States v. Chilingirian, 280 F.3d 704,

712 (6th Cir. 2002)).

       Unlike actual and constructive amendments, however, variances are not per se prejudicial.

Budd, 496 F.3d at 521 (citing Prince, 214 F.3d at 757). A variance will not result in reversible error

unless “substantial rights” of the defendant have been affected. Hathaway, 798 F.2d at 910. In order

for such a finding to result, the defendant must show prejudice to his ability to defend himself at

trial, to the general fairness of the trial, or to the indictment’s sufficiency to prevent future


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No. 07-1378
United States v. Brock


prosecutions. Id. (citing United States v. Miller, 471 U.S. 130 (1985)). Accordingly, to obtain a

reversal based on a variance, the defendant must satisfy a two-part test by demonstrating (1) a

variance occurred; and (2) the variance affected a substantial right of the defendant. United States

v. Kelley, 849 F.2d 999, 1002 (6th Cir. 1988).

        No variance occurred in this case. Although the evidence admitted at trial included events

that occurred prior to the traffic stop, as discussed above, such evidence did not prove facts different

from those alleged in the indictment. Rather, the Government questioned the Deybers about the

“straw purchases” they made on behalf of Brock in order to identify Brock as the actual owner of the

guns found on March 15. This line of questioning was intended to disprove Brock’s statements that

Papoi actually owned the guns (JA 110-14).

        And even if Brock had demonstrated a variance to the indictment, he would be unable to

prove a “substantial right” had been affected. The Government clearly provided notice prior to trial

that the Deybers would testify they purchased the guns for Brock (JA 35). Defense counsel

stipulated to the admission of ATF Forms 4473 for the purchase of the guns (JA 86-87). Also, the

testimony regarding the handling of the guns in the motel room on March 14 did not affect a

substantial right. This evidence came from Brock’s own statements to the detectives. Brock was

well aware of the allegation he possessed the guns on March 14 (JA 92 & 118), and he did not object

to such evidence at trial. Therefore, Brock cannot prove a variance in the trial proof.

                                          CONCLUSION

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


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