                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                      SEPTEMBER 20, 2011
                                     No. 10-13841
                                                                          JOHN LEY
                               ________________________
                                                                           CLERK

                     D. C. Docket No. 4:10-cr-00092-WTM-GRS-1

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus

JUAN L. DELVALLE,

                                                                       Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                           _________________________

                                    (September 20, 2011)

Before HULL and ANDERSON, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:




       *
         Honorable C. Roger Vinson, United States District Court for the Northern District of
Florida, sitting by designation.
      Juan L. Delvalle (“Delvalle”) appeals his conviction and 120-month

sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C.

§ 922(g)(1). Delvalle contends that the district court’s response to a jury question

about his stipulation that the firearm had traveled in interstate commerce confused

the jury and allowed them to infer improperly that he had prior personal

knowledge of the firearm. For the reasons set forth below, we agree the district

court erred in how it answered the jury’s question and the error was not harmless.

Thus, we reverse and remand for a new trial.

                               I. BACKGROUND

A.    Government’s Evidence at Trial

      On January 26, 2010, ten members of the Special Weapons and Tactics

Team (“SWAT”) of the Savannah-Chatham Metropolitan Police Department (“the

police”) went to execute a search warrant at a house located at 502 East

Montgomery Crossroads, where Defendant Delvalle, who was previously

convicted of a felony, lived. The police had received information that Delvalle

was in possession of an AK-47 firearm. As discussed later, Delvalle lived at this

house with his mother Zaida.

      In accordance with the SWAT plan for executing the warrant, the team

members positioned themselves at different locations around Delvalle’s house.

                                          2
Sergeant Woodward and Officer Lyttle waited outside Delvalle’s bedroom

window. The rest of the team went to the front door of Delvalle’s house.

      Both Officers Woodward and Lyttle testified at trial. Officer Lyttle testified

that he had to climb over an eight-foot chain-link fence to reach his location.

Once positioned, Officers Lyttle and Woodward stated that they could see a person

sitting on a bed; Woodward later identified the person in court as Delvalle. As the

officers watched, Delvalle got up, stood briefly in front of the window, and then

bent over as if he was reaching for something. Officer Woodward then broke the

window glass of the bedroom with his rifle and yelled, “Police, get down.”

According to Woodward’s testimony, Delvalle then ran and exited the bedroom.

One of the other officers seized Delvalle near the front door, after he observed him

running from a back room toward the front of the house.

      Officer Lyttle testified that when he entered the bedroom, he saw the AK-47

firearm in the area where he saw Delvalle reaching. The magazine was not in the

firearm, but instead was located under the port of the firearm. The magazine

contained live rounds. Neither officer saw Delvalle actually hold the firearm. At

trial, an employee of the police department, who had been detailed to the Bureau

of Alcohol, Tobacco, and Firearms, testified that the Bureau had tested the AK-47

firearm and determined it functioned as designed.

                                          3
      The only issue at trial was whether Delvalle “knowingly possessed” the AK-

47 firearm, as Delvalle stipulated to the other two elements of the offense. His

stipulation stated that he had a prior felony conviction and the firearm in the

indictment had been transported in interstate commerce, as follows:

             1. Prior to January 16, 2010, Juan L. Delvalle was a person who
             had been convicted of a felony, that is, a crime punishable by
             imprisonment for a term exceeding one year as charged in the
             indictment; and,
             2. That the firearm listed in the indictment; that is, a B-West,
             7.62x39 caliber, model AK 47S semi-automatic rifle, serial
             number 9992050, which had prior thereto been transported in
             interstate commerce from Arizona to Georgia prior to January 26,
             2010.

After the government read the stipulation to the jury, the court explained to them

the meaning of a stipulation.

B.    Defendant’s Evidence at Trial

      Delvalle’s defense theory was that his sister, Mandy Delvalle (“Mandy”),

had planted the AK-47 firearm in his bedroom and tipped the police in an attempt

to help her boyfriend get out of trouble.

      Delvalle first called Officer Woodward for further cross-exam. Delvalle

then called his mother Zaida as a witness. Zaida testified that, until a few weeks

prior to the search warrant execution, Mandy had lived with Delvalle and her at

Zaida’s home at 502 East Montgomery Crossroads. Zaida stated that she forced

                                            4
Mandy to leave because Mandy repeatedly sneaked her boyfriend into the house to

spend the night, contrary to Zaida’s orders. Zaida did not want the boyfriend

around because she believed he had problems with the police, and used and sold

drugs.

         On January 25, 2010 (the day before the search), Zaida left work and went

home after a neighbor, Miguel Sosa (“Sosa”), called her. Zaida stated that the

back door, which entered into Delvalle’s bedroom, was open when she got home.

Due to a problem with the lock, Zaida had been unable to lock the back door.

Mandy had already removed all of her belongings from the house at that time.

         Neighbor Sosa testified that on January 26, 2010, he called Zaida again

because he saw Mandy leaning a ladder against the fence that surrounded Zaida’s

backyard. However, Sosa did not observe Mandy cross the fence into the

property. There was no testimony by Sosa about Mandy having a firearm.

         Delvalle also called his father, Juan Delvalle, Senior, to testify. His father,

however, had little relevant testimony.

         Finally, Jacqueline Smith (“Smith”), a report writer for the police

department, testified that on January 25, 2010, she received a call at home from

her daughter, letting her know that Mandy wanted to talk to her. Smith told




                                             5
Mandy that she did not file reports at home, and that Mandy would need to go to

the police precinct if she wanted to file a report.



C.    Jury Instructions

      After the close of evidence,1 the district court instructed the jury, in relevant

part, that the government must prove beyond a reasonable doubt that the defendant

knowingly possessed a firearm as follows:

      The defendant can be found guilty of [a violation of 18 U.S.C. § 922(g)]
      only if all of the following facts are proved beyond a reasonable doubt:
      First:         that the defendant knowingly possessed a firearm in or
                     affecting interstate commerce, as charged; and
      Second:        that before the defendant possessed the firearm the
                     defendant had been convicted in a court of a crime
                     punishable by imprisonment for a term in excess of one
                     year, that is, a felony offense.

The district court also explained Delvalle’s stipulation:

      In this case, the parties have entered into agreement as to certain facts
      – that is, they have agreed that certain things are true. These agreements
      are referred to as stipulations of fact. A stipulation of facts that the
      parties have agreed to is in evidence and you may have them with you
      during your deliberations. You should accept these stipulations as true
      without the need for further evidence of the facts stated.
      In this case, the parties have stipulated that the weapon found was a
      firearm in or affecting interstate commerce and that, prior to January 26,
      2010, the defendant had been convicted of a felony. Therefore, you



      1
          Delvalle did not testify.

                                           6
      should accept those stipulations as true without the need for further
      evidence of those facts.

Additionally, the district court explained the concepts of actual and constructive

possession:

             The word “knowingly,” as that term is used in the indictment or
      in these instructions, means that the act was done voluntarily and
      intentionally and not because of mistake or accident.
             The law recognizes several kinds of possession. A person may
      have actual possession or constructive possession. A person may also
      have sole possession or joint possession.
             A person who knowingly has direct physical control of something
      is then in actual possession of it.
             A person who is not in actual possession but who has both the
      power and the intention to later take control over something, either alone
      or together with someone else, is in constructive possession of it.
             If one person alone has possession of something, that possession
      is sole. If two or more persons share possession, such possession is
      joint. But just being present with others who had possession is not
      enough. The government must prove beyond a reasonable doubt that the
      defendant knowingly had either actual or constructive possession of the
      firearm for you to find him guilty.
             Whenever the word “possession” has been used in these
      instructions it includes constructive as well as actual possession, and
      also joint as well as sole possession.

Neither party objected to those instructions. The jury retired to deliberate at

10:16 AM.

D.    Jury Question No. 1

      At 11:38 AM, the jury asked its first question, which read: “Please clarify

constructive possession. Does there have to be evidence that the defendant knew

                                          7
the gun was in the house?” Without objection from defense counsel, the district

court responded that the defendant must knowingly possess the firearm and

defined “knowingly” as follows:

      The statute requires that the defendant knowingly possessed a firearm
      in or affecting interstate commerce as charged. See jury instructions,
      Page 8. The word “knowingly,” as that term is used in the indictment or
      in these instructions, means that the act was done voluntarily and
      intentionally and not because of mistake or accident. See jury
      instructions, Page 9.

E.    Jury Question No. 2 and Allen Charge

      At 12:10 PM, the jury sent its second question, requesting transcripts of the

police testimony. The district court replied to the jury that no real time transcript

of the testimony was available. Neither party objected to this response.

      At 1:18 PM, the jury requested to be declared a hung jury. The district court

then asked the parties if they wanted the court to give an Allen charge. After

counsel had time to discuss it among themselves, the court asked if they wanted to

know the jury’s numerical division. As the government did, the court instructed a

security officer to obtain the information. Delvalle did not object to the inquiry.

The court informed counsel of the numerical division (8 guilty; 4 not guilty) and

then inquired whether they wanted an Allen charge or a mistrial declared. The

government requested the charge, and Delvalle opposed it. Subsequently, the



                                          8
court issued the Allen charge to the jury. At 1:30 PM, the jury returned to

deliberation.



F.     Jury Question No. 3

       At 3:04 PM, the jury sent a third question in three parts: (1) “Sir–Does

Juan’s [Devalle] signature on the stipulation show that Juan knew this particular

gun came from Arizona?”; (2) “Does this show that he knew this gun prior to his

arrest?”;2 and (3) “Does Juan’s signature show that he is familiar with this gun in

any way prior to his arrest?”

       The district court proposed the following response to counsel:

       [Part 1] The Defendant’s signature on the stipulation acknowledges that
       he agrees that the firearm had been transported in interstate commerce
       from Arizona to Georgia prior to January 26, 2010.
       [Part 2] This is a question for the jury to decide.
       [Part 3] This is a question for the jury to decide. I remind you again that
       a stipulation represents facts agreed to by the Government and the
       Defendant, and that these facts do not require any further proof. The
       Defendant had stipulated only to the information contained in
       paragraphs 1 and 2 of the stipulation.




       2
        Although the actual jury note stated this, the district court informed counsel that the note
said “Does this show that he knew this gun?”

                                                 9
The government objected to the first answer, and in response, the court added the

sentence “The Court refers you to the elements of the charged offense contained

on page 8 of the jury instructions” to the end of the first part.

      Delvalle also asked the district court to change its answer to the first part.

Specifically, Delvalle asked the court to add the phrase “listed in the indictment”

after the word “firearm.” The court denied Delvalle’s request, stating the wording

might confuse the jury as there was “only one firearm in the indictment, and the

evidence only dealt with one firearm.” At one point, Delvalle stressed that the

stipulation “doesn’t mean he knew anything about the firearm.” Although

Delvalle continued to express concern about the court’s particular answer to the

first part, no other specific objection was made to parts 2 and 3 of the court’s

answer to Jury Question No. 3. The court ended the discussion and sent the

response in writing to the jury.

      At 4:02 PM, after receiving another note that the jury was deadlocked, the

district court ordered the jury back to the jury box. However, the foreperson stated

the jury was “perhaps ready to do another vote immediately.” The court asked the

jury to try to reach a verdict and dismissed them to return to deliberations. At 4:34

PM, the jury returned a unanimous verdict, finding Delvalle guilty of violating 18

U.S.C. § 922(g)(1).

                                           10
      Delvalle timely filed a motion for a new trial, which the district court

denied. Subsequently, the court sentenced Delvalle to 120 months’ imprisonment.




      Delvalle timely appealed. On appeal, Delvalle argues the district court’s

responses to Jury Question No. 3 misled and prejudiced the jury, requiring a new

trial. Delvalle focuses, however, mainly on the second and third parts of

Question 3.

                           II. STANDARD OF REVIEW

      When, as here, the defendant in the district court did not object to the

second and third parts of Jury Question No. 3, this Court reviews only for plain

error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under

the plain error standard of review, we may not correct an error raised for the first

time on appeal unless the defendant shows (1) an error, (2) that is plain, (3) that

affects substantial rights, and (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. Plain error review should be exercised

“sparingly,” Jones v. United States, 527 U.S. 373, 389, 119 S. Ct. 2090, 2012

(1999), and only “in those circumstances in which a miscarriage of justice would




                                           11
otherwise result.” United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770,

1779 (1993) (quotation marks omitted).

      Where a defendant challenges a court’s response to a jury question, “[a]n

appellate court must examine the entire jury charge and determine whether, taken

as a whole, the issues and law presented to the jury were adequate.” United States

v. Roper, 874 F.2d 782, 790 (11th Cir. 1989). Though a district court has

considerable discretion in determining how to respond to jury questions, it may

not misstate the law or confuse the jury. See United States v. Lopez, 590 F.3d

1238, 1247-48 (11th Cir. 2009).

                                III. DISCUSSION

      We first conclude the district court erred in its response to the second and

third parts of Jury Question No. 3. The second part stated: “Does [Delvalle’s

signature on the stipulation] show that he knew this gun prior to his arrest?” The

third part stated: “Does Juan’s signature show that he is familiar with this gun in

any way prior to his arrest?” The district court effectively responded that it was

for the jury to decide whether the stipulation and Delvalle’s signature thereon

showed Delvalle was familiar with the firearm.

      However, Defendant Delvalle’s stipulation and signature on the stipulation

were not any evidence of his knowledge of the AK-47 firearm, much less his

                                         12
knowing possession of the firearm on January 26, 2010. The district court’s

answer invited the jury to decide that Delvalle’s signature on the stipulation

provided evidence of his familiarity, and thus knowledge, of the AK-47 firearm

before his arrest. This was error. See United States v. Hellman, 560 F.2d 1235,

1236 (5th Cir. 1977) (finding plain error and reversing where the court instructed

the jury to use the stipulation in a manner beyond the stipulation’s purpose).3

       Moreover, this error was plain, because the stipulation and its effect went

only to the interstate commerce and prior felony conviction elements. A

stipulation serves as proof only of the facts stated in the stipulation, and no more.

The district court should have told the jury Delvalle’s stipulation and signature

thereon were not evidence of knowledge or familiarity of this firearm. It was only

evidence the firearm at some point earlier had traveled in interstate commerce.

The district court not only failed to give correct answers to the question, but

compounded the error by giving answers that allowed the jury to use the

stipulation and signature thereon as evidence of Delvalle’s knowledge.

       The error also affected Delvalle’s substantial rights, as there is a reasonable

probability of a different result absent the error. See Rodriguez, 398 F.3d at 1299



       3
       This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

                                               13
(noting “reasonable probability” “means a probability ‘sufficient to undermine

confidence in the outcome’” (quoting United States v. Dominguez Benitez, 542

U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004))). The jury had only one issue to

decide: did Delvalle knowingly possess the AK-47 firearm. The government’s

evidence on this point cannot be deemed overwhelming. Indeed, the jury’s

deliberations on that one issue lasted over six hours, and it twice declared its

inability to reach a verdict. Further, of the jury’s three questions, two concerned

the knowledge element. The close connection in time between the court’s

erroneous response and the end of the jury’s day-long struggle with the knowledge

element also suggests the court’s erroneous response likely impacted the jury

verdict.

      Finally, the error here went to the heart of the matter and seriously affected

the fairness of the proceedings.

      Accordingly, we vacate Delvalle’s conviction and sentence, and remand for

a new trial.

      VACATED AND REMANDED.




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