U.S. v. Barber
| Decision Date | 12 March 1979 |
| Docket Number | No. 78-1915,78-1915 |
| Citation | 594 F.2d 1242 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Wayne BARBER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John J. Robinson, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Bruce R. Castetter, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
Sheldon Sherman (argued), San Diego, Cal., for defendant-appellant.
Appeal from the United States District Court for the Southern District of California.
Before ELY and HUFSTEDLER, Circuit Judges, and LYDICK, * District Judge.
Barber appeals from his conviction for conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and for unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2). Barber contends that the evidence was insufficient to sustain his conviction for violating 18 U.S.C. § 924(c)(2) because the Government failed adequately to prove that he was "carrying" a firearm "during" the commission of a federal felony within the meaning of the statute, that the Government deprived him of effective assistance of counsel in cross-examining a defense witness, and that the district court erred in refusing to enforce a discovery order.
Roberts, a government undercover agent, arranged to buy a large quantity of cocaine from Barber's co-defendant Daniels. Arrangements were made to complete the sale at the San Diego Airport on November 10, 1977. Co-defendant Fultz agreed to deliver a one-pound installment of cocaine from his suppliers. To inspect the sample, Roberts entered a Jaguar automobile, driven by Barber, and asked Barber, and his passenger, co-defendant Langley, whether they had a pound of cocaine. Langley handed the cocaine to Roberts, who thereafter conducted a field test on the cocaine. Roberts then left the Jaguar to pick up the purchase money, instructing Fultz to deliver the cocaine to him where Fultz had parked his Cadillac. After Roberts obtained the cocaine from Fultz, he started to walk away with it and with his briefcase of purchase money. Fultz yelled at Roberts, and Roberts gave the arrest signal. After a high-speed chase, Fultz was arrested in the Cadillac. Other surveilling agents saw Barber driving the Jaguar rapidly out of the area with its lights out. Pursuant to an all-points bulletin issued for the Jaguar, Barber was stopped and arrested by California Highway Patrol Officers an hour later. After his arrest, the Jaguar was searched and a .22 Derringer was found in the locked glove compartment. Neither Barber nor his co-defendants has a permit to carry a concealed weapon.
Following a guilty verdict on the cocaine and gun counts, Barber was given concurrent sentences on the cocaine counts, but his sentence on the gun count was made consecutive to the cocaine sentences.
In pertinent part, 18 U.S.C. § 924(c)(2) provides:
"(c) Whoever . . . (2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment . . .."
To establish a violation of Section 924(c)(2), the Government must prove that the defendant (1) knowingly (2) carried a firearm (3) unlawfully (4) during the commission of a federal felony.
Although the statute does not expressly mention any mental element in stating the offense, "knowledge" or "willfulness," meaning knowledge of the facts constituting the offense, is ordinarily implied. (Morissette v. United States (1952) 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288; Pena-Cabanillas v. United States (9th Cir. 1968) 394 F.2d 785, 788.) All that is meant by this rudimentary mental element is that the defendant voluntarily and intentionally did the act or acts charged. 1 In recognition of this principle, the indictment charging Barber with an offense under Section 924(c)(2) averred that Barber "knowingly" carried the firearm and the jury was accordingly instructed.
To prove that Barber actually knew that the Derringer was in the glove compartment, the Government offered evidence, not only that Barber was driving the vehicle containing the firearm, but also evidence that papers belonging to both Barber and Langley were found in the same glove compartment. Barber tried unsuccessfully to rebut this evidence by the testimony of JoAnne, Barber's former girl friend, who testified that she owned the Jaguar and that she had acquired the Derringer from an unidentified third person who asked her to take the gun for repairs. She also testified that she had placed the gun in the glove compartment sometime late in October or the first week in November and that she left the gun in the vehicle when she gave the Jaguar to Mr. Barber to repair the car. The jury did not credit JoAnne's testimony, which was thoroughly impeached. From the Government's evidence, the jury was entitled to infer that Barber was fully aware of the presence of the gun in the glove compartment. His use of the Jaguar, under circumstances that gave him access to the glove compartment, together with his papers and those of Langley in the compartment with the gun permitted the jury properly to infer that he knew that the gun was in the glove compartment.
Barber also argues that the word "carries," as used in the statute, connotes only the concept of bearing the weapon upon one's person or having the gun within his immediate control. Although Congress never specifically addressed the question whether the term "carries" was intended to encompass " transports" or "possesses," we think that the ordinary meaning of the term embraces Barber's transportation of the weapon. In ordinary usage, the verb " carry" includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word "carries." (See United States v. Ramirez (2d Cir. 1973) 482 F.2d 807, 813-14.) 2
Barber next contends that the Government did not produce sufficient evidence to show that he was carrying the firearm during the time he was committing a federal felony. He relies upon the fact that the gun was not discovered until he was taken into custody, about an hour after he participated in the abortive drug sale. Although enough time elapsed from Barber's drug transaction with Roberts until Barber was taken into custody to permit a third person to put the gun...
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