U.S. v. Santos

• Citation: 64 F.3d 41
• Decision Date: 28 July 1995
• Docket Number: D,Nos. 1881,1882,s. 1881
• Parties: UNITED STATES of America, Appellee, v. Elpidio G. SANTOS, also known as Indio, and Victor Alejo, Defendants-Appellants, Juan Garcia, Defendant. ockets 94-1602(L), 94-1618.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 41

64 F.3d 41

UNITED STATES of America, Appellee, v. Elpidio G. SANTOS, also known as Indio, and Victor Alejo Defendants-Appellants Juan Garcia, Defendant.

Nos. 1881, 1882, Dockets 94-1602(L), 94-1618.

United States Court of Appeals Second Circuit.

Argued June 28, 1995.

Decided July 28, 1995.

Christine E. Yaris, New York City, for defendant-appellant Elpidio G. Santos.

Juan A. Campos, New York City, for defendant-appellant Victor Alejo.

David C. Esseks, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., Alexandra Rebay, Asst. U.S. Atty., for the S.D.N.Y., New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, JACOBS, and CABRANES, Circuit Judges.

JACOBS, Circuit Judge:

Defendants-appellants Elpidio Gerardo Santos and Victor Alejo challenge their conviction and sentencing for use of a firearm equipped with a silencer during and in relation to a drug trafficking crime, pursuant to 18 U.S.C. Sec. 924(c)(1). They argue that the evidence was insufficient to show beyond a reasonable doubt that the silenced firearm, which was in a paper bag stowed in an oven drawer, was "used" in the drug transaction for which they were convicted; that the thirty-year sentence specified in the statute--mandatory and consecutive--violates the Eighth Amendment; and that the statute is vague and offends due process. We affirm.

BACKGROUND

The judgments of conviction were entered in the United States District Court for the Southern District of New York (Haight, J.). Each defendant was found guilty, following a jury trial, of one count of conspiracy to distribute, and to possess with intent to distribute, cocaine in violation of 21 U.S.C. Sec. 846; one count of distributing, and possessing with intent to distribute, cocaine within 1000 feet of a school, in violation of 21 U.S.C. Secs. 841(b)(1)(B) and 860 and 18 U.S.C. Sec. 2; and one count of using and carrying firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Secs. 2 and 924(c). The district court sentenced each defendant principally to seventy months' imprisonment on the conspiracy and substantive possession counts and to the consecutive term of thirty years' imprisonment mandated on the firearms count. Both defendants are currently serving their sentences.

Santos and Alejo operated a cocaine distribution center in an apartment on West 188th Street in New York City. In June 1991 the Drug Enforcement Agency ("DEA") enlisted a confidential informant to make a two-kilogram cocaine purchase from the defendants. The informant conducted inconclusive negotiations with Santos on a street corner in the vicinity of the apartment. Later that month, the informant met with Santos again on the same street corner. This encounter was interrupted by two other men who approached Santos about another two-kilogram deal. The informant tagged along as Santos and the two men went up to the apartment, where Alejo and another individual were counting money. Santos retrieved two kilograms of cocaine from another room and, after some discussion of quality and an exchange of the goods for two other kilograms, the two men accepted the cocaine, paid for it, and carried it from the apartment. Santos then told the informant that they should discuss their own deal later.

On August 13, 1991, the informant telephoned Santos, who invited the informant to see him. The informant, accompanied by another DEA informant posing as a buyer, went to the address of the upper Manhattan The agents entered the apartment pursuant to a previously issued search warrant, and found the single kilogram of cocaine on the living room coffee table, together with a loaded 9mm semiautomatic handgun; a second 9mm handgun next to an open window in the living room; a .38 caliber revolver loaded with hollow point bullets on the top shelf of the living room closet; another loaded firearm, $21,000 in cash and several small packets of cocaine in the bedroom; as well as scales, razor blades, packaging materials, sales records, and other paraphernalia.

apartment, where they encountered Santos and Alejo on the street. The informant told Santos that his colleague was ready to purchase the two kilograms they had discussed, and made the usual introductions. Santos told them that he was expecting a delivery of cocaine shortly. The courier arrived shortly thereafter and went upstairs with Alejo. Santos and the purported buyer followed; when they arrived, Alejo was talking on the telephone, holding a firearm in his hand, and the courier was sitting next to a coffee table on which was placed a single kilogram of cocaine. After an inspection of the single kilogram, Santos and the buyer left the apartment with the courier, ostensibly so that the buyer could get the purchase money. DEA agents arrested Santos and the courier in the hallway. Alejo was apprehended shortly after, having climbed out a window, broken into the apartment above, and attempted to escape down the stairway.

When the agents looked in the broiler drawer of the oven, they found a second kilogram of cocaine. Just above the cocaine was a .22 caliber firearm equipped with a silencer. This gun, loaded and ready to fire, was wrapped in brown paper and had been put in the oven with the grip toward the front of the broiler drawer. DEA Special Agent Don Bullard noted at trial that the gun did not have to be unwrapped to be fired: "All you had to do was stick your finger through the bag and it was ready to go."

The district court denied the defendants' motion, at the close of the government's case, for a judgment of acquittal on the 924(c) firearms count in respect of the silencer-equipped gun. The defense rested without putting on a case, and the jury returned a verdict of guilty on all counts. The defendants then renewed their challenge in respect of the silenced firearm, as well as previously raised Eighth Amendment and due process challenges to section 924(c)'s mandatory thirty-year sentence for the use of a silenced firearm in relation to a drug trafficking offense. In a thorough Memorandum Opinion and Order, the district court again denied all defense motions.

DISCUSSION

A. Sufficiency of Evidence

In respect of the silenced .22 caliber firearm, the defendants contend that the evidence adduced at trial was insufficient to establish that they "used" this firearm "in relation to" a drug trafficking offense. A defendant who challenges the sufficiency of evidence, following conviction by a jury, takes up a heavy burden. See United States v. Gelzer, 50 F.3d 1133, 1142 (2d Cir.1995). The appellate court considers the evidence in the light most favorable to the government, and must "credit[ ] all inferences and credibility assessments that the jury might have drawn in favor of the government." United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir.1995). Moreover, the verdict may be based entirely on circumstantial evidence, United States v. Taylor, 18 F.3d 55, 59 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2720, 129 L.Ed.2d 845 (1994), and there is no requirement that the government demonstrate that it has disproved every possible theory inconsistent with guilt. United States v. Sureff, 15 F.3d 225, 228 (2d Cir.1994). In short, we must affirm the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The elements of a section 924(c) violation are (1) that the defendant "use[d] or carrie[d] a firearm," and (2) that such use or carrying of the firearm was "during and in relation to ... [a] drug trafficking crime." 18 U.S.C Sec. 924(c)(1). Defendants contend that neither of these elements was satisfied.

In respect of the "use" element, the government must adduce:

i) Proof of a transaction in which the circumstances surrounding the presence of a firearm suggest that the possessor of the firearm intended to have it available for possible use during the transaction; or

ii) The circumstances surrounding the presence of a firearm in a place where drug transactions take place suggest that it was strategically located so as to be quickly and easily available for use during such a transaction.

United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988). In other words, " 'use' requires possession of a gun under circumstances where the weapon is so placed as to be an integral part of the offense." United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 493 U.S. 858, 110 S.Ct. 166, 107 L.Ed.2d 123 (1989).

Such use must be "during and in relation to" a drug trafficking offense. Defendants do not appeal their drug trafficking convictions and, therefore, the silenced gun--which was present in the oven during the commission of those offenses--was concededly possessed "during" a drug trafficking offense. As for the "in relation to" requirement, "the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence." Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993). However, "[t]he phrase 'in relation to' is expansive," and if the firearm had even the potential to facilitate a drug trafficking crime we will affirm the conviction. Smith, --- U.S. at ---- - ----, 113 S.Ct. at 2058-59.

In the light of this precedent, we have no trouble affirming these convictions. Defendants argue that the silenced firearm was merely being "stored" in the oven. However, we have never required that a firearm be outwardly brandished to sustain a conviction under section 924(c). The required nexus with a drug trafficking offense may be established by proof that would permit a jury to infer that the defendant intended to make use of a weapon should the need or opportunity arise. See, e.g., United States v. Lindsay, 985 F.2d 666, 672 (2d Cir.), cert....