United States v. Ness.
No. 23-7051. 12/31/2024. D.Okla. Judge Phillips. Jury Instructions—Pattern Instruction for “On or About”—Temporal Limit—Effect on Substantial Rights.
December 31, 2024
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigated Ness for illegal possession of firearms and ammunition. The ATF executed a search warrant at Ness’s trailer on September 8, 2021, during which it seized a firearm and a cache of ammunition. Ness was indicted with a single count of felon in possession of a firearm for conduct “on or about” September 8, 2021. The government introduced evidence of the firearm and ammunition seized on September 8 and some of Ness’s postings to his Facebook account from December 2020. As relevant here, the court gave the jury the Tenth Circuit’s pattern jury instruction for “on or about.” After the jury began its deliberations, the foreperson asked the court: “We need to know what was the timeline that the [sic] alleges that the charged offense was committed on or about Sept. 8, 2021. How far back do we go back on the dates.” The court and counsel discussed possible responses to the jury, and Ness agreed on a response that said, “You have all the evidence you need to render your verdict.” Ness was convicted as charged.
On appeal, Ness argued that the district court erred by not clarifying the “on or about” instruction. Ness maintained that the court needed to respond by reinstructing that “reasonably near” means within “a few weeks,” and the jury could convict Ness only for conduct within a few weeks of September 8, unless the case circumstances justified a longer interval. He contended that the jury may have thus convicted him based on the Facebook evidence that he possessed a rifle in December 2020, which was uncharged conduct. Ness acknowledged that he forfeited this argument in the district court and argued for plain error. The Tenth Circuit’s pattern jury instruction states that “on or about” means “reasonably near.” Here, the jury’s question included the language “on or about,” suggesting that it needed clarification on the law, not the evidence, so the court’s written response was nonresponsive. However, the pattern jury instruction properly told the jury that “reasonably near” is the temporal limit of “on or about.” Given the evidence, Ness failed to show a reasonable probability that the case would have had a different outcome even if he had shown plain error, so the court’s response to the jury’s question did not affect Ness’s substantial rights. Therefore, the district court did not plainly err in responding to the jury’s question.
The conviction was affirmed.