459 F.3d 39 (1st Cir. 2006), 05-1315, United States v. Roberson

Docket Nº:05-1315.
Citation:459 F.3d 39
Party Name:UNITED STATES of America, Appellee, v. Kurt ROBERSON, Defendant, Appellant.
Case Date:August 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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459 F.3d 39 (1st Cir. 2006)

UNITED STATES of America, Appellee,


Kurt ROBERSON, Defendant, Appellant.

No. 05-1315.

United States Court of Appeals, First Circuit.

Aug. 11, 2006

Heard March 7, 2006.

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[Copyrighted Material Omitted]

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Martin F. Murphy, with whom Foley Hoag LLP was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LIPEZ, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

A jury convicted Kurt Roberson of selling more than 50 grams of crack cocaine, see 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii), and of using or carrying a firearm during and in relation to that transaction, see 18 U.S.C.§ 924(c)(1)(A). The district court sentenced Roberson to 300 months' imprisonment. Roberson's

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appeal challenges his convictions and sentence on several grounds. We affirm.


The Federal Bureau of Investigation (FBI) began investigating Roberson in early 2003. As part of that investigation, FBI agents engaged the services of a cooperating witness, Eric Mena, who had known Roberson for eight years and had formerly been a drug dealing associate of Roberson's. Mena agreed to make a controlled purchase of crack cocaine from Roberson as part of a plea bargain resolving drug charges against him.

On March 10 of that year, FBI agent Edward Kappler outfitted Mena with an electronic transmitter and a digital recorder to enable the FBI to monitor Mena's conversations with Roberson. Mena then went to the home of Raymond Muse, a mutual associate of Roberson and Mena, and informed him that he wanted to buy some crack from Roberson. Muse brought Mena to where Roberson was currently staying. After Roberson entered Mena's car, Mena told him that he needed two ounces of crack. Roberson agreed to provide the drugs the next evening and told Mena that he should call to initiate the pickup.

While Mena was saving Roberson's phone number on his mobile phone, Roberson spontaneously stated, "Yo, you got any burners? I can trade you a burner." Mena testified at trial that "burner" meant handgun, and that he understood Roberson's statement to be an offer to sell him a gun. Roberson described the gun as "a brand new, 40 cal." that was "like a Glock, top is chrome. The rest is plastic." Mena was noncommittal as to that offer but confirmed that he would meet with Roberson the next day.

The following evening, Mena, who was again outfitted with a transmitter and an audio recorder, tried several times, unsuccessfully, to reach Roberson on his mobile phone. The FBI directed Mena to drive to Muse's house again. Rather than using his own car, however, Mena drove an undercover car that the FBI had equipped with a hidden video camera. After Muse and Mena successfully contacted Roberson, Muse directed Mena to an apartment complex in a nearby town. Mena drove the undercover car with Muse as his passenger.

After they arrived at the apartment complex, Muse located Roberson and brought him to Mena's car. Roberson sat in the front passenger seat next to Mena, while Muse sat in the back. Roberson told Mena, "I got your sixty grams," and then told him it would cost $2,000. As Mena was counting out his money, Roberson looked out the back window and stated, "I got the rap on me so I'm shook anyway." Mena testified at trial that this meant that Roberson was paranoid because he had a handgun on him. Roberson then handed Mena a sandwich bag containing crack.

As Mena inspected the crack, Roberson pulled a handgun out of his waistband, pointed it in Mena's direction, and stated, "That's what I'm talking about man." Mena told Roberson not to point the gun at him and asked to see it. Roberson handed the gun to Mena, who looked at it and smelled it to see if it had been fired. Mena found the design of the gun to be consistent with a "Glock" in that the top was chrome and the bottom was plastic. Mena asked Roberson why he wanted to get rid of the handgun and Roberson replied that the serial numbers had been scratched off. When Mena asked whether the gun had been fired yet, Roberson replied, "Nah, I don't waste shells, man. I shoot niggas though." Mena handed the

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gun back to Roberson, and they completed the drug transaction.

Mena then asked Roberson if he would be interested in buying Mena's car. Mena initiated this conversation outside the car so that FBI agents would have an opportunity to observe Roberson directly. As a result, agent Timothy Quinn, who was conducting physical and audio surveillance nearby, was able to drive within 12 feet of Mena and Roberson as they looked over the vehicle. Roberson then went back into the apartment complex.

Later that month, a federal grand jury returned a two count indictment charging Roberson of possession with intent to distribute and distribution of more than 50 grams of cocaine base, 1 in violation of the Controlled Substances Act ("CSA"), see 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii) (the "drug charge"), and of using or carrying a firearm "during and in relation to" a drug trafficking offense, see 18 U.S.C. § 924(c)(1)(A) (the "gun charge"). The government subsequently filed an information pursuant to 21 U.S.C. § 851 providing notice of its intent to seek increased punishment--the doubling of the drug charge's mandatory minimum sentence from 10 to 20 years--by reason of a prior conviction. After a five-day trial, including testimony from Mena, Kappler and Quinn, a jury convicted Roberson on both counts.

Roberson moved for a judgment of acquittal both during trial and after the verdict. See Fed.R.Crim.P. 29(a), (c). He argued that there was insufficient evidence establishing that he had possessed crack or had sold more than 50 grams of crack. He also argued that the government had not presented sufficient evidence to prove that he had carried or used a "firearm," as that term is defined in 18 U.S.C. § 921(a)(3), or that he had carried or used a firearm "during and in relation to" the drug transaction. Finally, he argued that, because the government had not offered any evidence establishing his prior conviction, the district court could not impose an increased penalty for the drug conviction. The court denied Roberson's motions in all respects.

At sentencing, the district court found that the 20-year mandatory minimum applied to the drug charge, see 21 U.S.C. § 841(b)(A)(iii), and a 5-year consecutive mandatory minimum applied to the gun charge, see 18 U.S.C.§ 924(c)(1)(A). After determining that the Sentencing Guidelines advised a sentencing range of 35 years to life, and considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court imposed a sentence of 25 years in prison, the statutory minimum sentence.

Roberson now appeals the district court's order denying his motion for judgment of acquittal on the gun charge, arguing that the government failed to adduce sufficient evidence to prove either that he carried an actual "firearm" or that he carried a firearm "in relation to" a drug trafficking offense. He alternatively requests a new trial on the gun charge on the ground that the court erroneously instructed the jury concerning the "in relation to" requirement, and a new trial on both charges on the basis of improperly admitted testimony. Finally, Roberson argues that the applicable mandatory minimum sentence for the drug conviction is ten years, not 20 years.


A. The gun charge

Roberson challenges the consecutive five-year mandatory minimum sentence he

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received for using or carrying a firearm "during and in relation to a drug trafficking offense" on several grounds. 18 U.S.C. § 924(c)(1)(A). We begin with Roberson's contention that the district court incorrectly instructed on the "in relation to" requirement, and compounded the error by simply restating the same erroneous instruction when the jury sought clarification.

At trial, both Roberson and the government submitted proposed jury instructions addressing the gun charge. The government proposed the First Circuit pattern jury instruction, which provides, in relevant part:

To "carry" a firearm during and in relation to a crime means to move or transport the firearm on one's person or in a vehicle or container during and in relation to the crime. It need not be immediately accessible. To "use" a firearm during and in relation to a crime means to employ the firearm actively, such as to brandish, display, barter, strike with, fire or attempt to fire it, or even to refer to it in a way calculated to affect the underlying crime. The firearm must have played a role in the crime or must have been intended by the defendant to play a role in the crime. That need not have been its sole purpose, however.

See First Circuit Criminal Pattern Jury Instructions § 4.07 (1998). The pattern instruction purposefully declines to define "in relation to" separately from the terms "carry" and "use." See id. § 4.07 cmt. 3 ("It seems best not to define 'use or carry' separately from 'during and in relation to.' "). 2 Roberson, however, drawing on language from Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), proposed that a paragraph be added to directly address this requirement. The court agreed to instruct the jury on the "in relation to" element, but declined to adopt Roberson's proposal wholesale. Instead, it crafted its own instruction based on language from Smith:

The words "during and in relation to" are to be given their plain and customary meaning. The phrase "in relation to" is expansive. At a minimum it means that the firearm must have had some purpose or effect with respect to the drug trafficking crime. If a firearm is present simply as a result of coincidence or accident it cannot be said that it was used or carried in relation to the drug traffic[king]...

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