United States v. Edward Terry

Defendant/Appellant Edward Terry was convicted for being a felon in possession of a firearm. He had been indicted on two drug related counts as well as the firearm count. There was a mistrial on the drug counts.

Terry appeals his conviction on four grounds. He argues that 1) the search of his residence where the gun was discovered was invalid; 2) the drug and firearm counts were misjoined; 3) there was not sufficient evidence to support his conviction; and 4) the trial judge erred by issuing a new instruction which redefined “constructive possession” without first affording counsel an opportunity to evaluate that instruction, formulate objections to it or to suggest a different response.

We find that there was sufficient evidence to convict and that the affidavit underlying the search warrant provided probable cause for the search. However, it was error for the district court to join all three counts and to instruct the jury in the midst of deliberations on a different and incorrect definition of constructive possession. Therefore, we reverse the conviction and remand for retrial.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 1989, Terry intended to meet his wife and daughter…