No. 18-2197

UNITED STATES OF AMERICA,

Appellee,

v.

REGINALD MCBRIDE, a/k/a Kweasia McBride, a/k/a Reggie McBride, a/k/a Reginald Washington, a/k/a Benjamin McBride, a/k/a Manney McBride, a/k/a Anthony Walker, a/k/a Ben McBride, a/k/a John Doe, a/k/a Sunny,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Lynch, and Barron, Circuit Judges.

Elizabeth A. Latif and Law Offices of Elizabeth Latif, PLLC on brief for appellant. Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

June 11, 2020 LYNCH, Circuit Judge. After a three-day trial, a jury convicted Reginald McBride of (1) possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); and (3) carrying and using a firearm during and in relation to, and possessing the firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In the course of determining McBride's guilt on Count Three, the jury was asked one special interrogatory and determined that the government had not proven that the firearm was "discharged."

McBride challenges his conviction on Count Three on two grounds. He argues that the indictment was constructively amended in violation of the Fifth Amendment's Grand Jury Clause because of the admission of evidence, the government's closing argument, and the jury instructions. He further argues that the jury's verdict on Count Three and the special interrogatory answer were irreconcilably inconsistent. We affirm.

I.

McBride only challenges his conviction on Count Three. We recount the relevant facts in the light most favorable to the verdict. United States v. Leoner-Aguirre, 939 F.3d 310, 313 (1st Cir. 2019).1

1 As to Counts One and Two, McBride contested at trial that he had previously been convicted of a felony and that the

- 2 - A. Facts

On June 26, 2016, Samantha Tupper, a friend of McBride, drove a white Ford Taurus to where McBride had been staying with a friend in Augusta, Maine. McBride testified that Tupper had called him and said she needed to talk to him about something. McBride packed up his belongings and when Tupper arrived, he put his bags into the trunk of the car. The two drove around Augusta and Tupper told McBride that some other individuals had informed her that she owed them money.

McBride further testified that he and Tupper drove to a convenience store and picked up two females, who sat in the backseat. One of the women began to physically attack Tupper while Tupper was driving and demanded that Tupper pay her the money that she owed. Tupper stopped the car at the Walmart in Augusta and continued arguing with the woman. At various points during the dispute, Tupper, McBride, and both female passengers got out of the vehicle in the Walmart parking lot.

Another man approached the group in a silver Volkswagen and got out of the vehicle. McBride testified that the other man pulled out a gun. McBride further testified that he drew the

substance found in his possession was heroin. He does not challenge on appeal that he had previously been convicted of possession of a controlled drug, forging a public record, distribution of cocaine, and crim