79 F.3d 212 (1st Cir. 1996), 95-1199, United States v. Manning

Docket Nº:95-1199.
Citation:79 F.3d 212
Party Name:UNITED STATES, Appellee, v. Trent MANNING, Defendant, Appellant.
Case Date:March 21, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 212

79 F.3d 212 (1st Cir. 1996)

UNITED STATES, Appellee,

v.

Trent MANNING, Defendant, Appellant.

No. 95-1199.

United States Court of Appeals, First Circuit

March 21, 1996

Heard Nov. 9, 1995.

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[Copyrighted Material Omitted]

Page 214

Appeal from the United States District Court for the District of Rhode Island; Ernest C. Torres, U.S. District Judge.

Robert B. Mann, with whom Mann & Mitchell was on brief, for appellant.

Sheldon Whitehouse, United States Attorney, with whom Assistant United States Attorneys were on brief, for appellee.

Before SELYA, CYR and STAHL, Circuit Judges.

STAHL, Circuit Judge.

On May 6, 1994, this court vacated defendant-appellant Trent Manning's convictions for possession with intent to distribute cocaine (Count I), use of a firearm during and in relation to a drug trafficking crime (Count II), and possession of a firearm by a convicted felon (Count III), holding that prosecutorial

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misconduct during closing arguments warranted a new trial. United States v. Manning, 23 F.3d 570, 573-76 (1st Cir.1994). After his second jury trial in November of 1994, Manning again was convicted on all three counts. Manning challenges this latest round of convictions, claiming that the district court erred in: (1) denying his motion for acquittal on Count II, (2) admitting evidence of uncharged misconduct, (3) denying his request for an expert, (4) precluding evidence and argument regarding his potential sentence, (5) denying his motion to suppress evidence found during the October 7, 1991 search, (6) instructing the jury, and (7) responding to the jury's inquiry. Finding no merit in Manning's first six claims, we affirm his convictions on Counts I and III. Finding that the district court erred in responding to the jury's inquiry, however, we vacate Manning's conviction on Count II and remand Count II for a new trial.

I.

BACKGROUND

Viewing the evidence in the light most favorable to the verdict, United States v. Wihbey, 75 F.3d 761, 763-64 (1st Cir.1996), we conclude that a reasonable jury could have found the following facts.

Late in the afternoon on October 7, 1991, several members of the Providence Police Department executed a search warrant at Manning's mother's house, located at 151 Doyle Avenue in Providence, Rhode Island. Just three or four minutes before the raid, Detective David Lussier, who had known Manning for some time, saw Manning and a passenger drive by his surveillance position (in a parking lot about fifty yards from 151 Doyle Avenue with a direct view into its rear yard) in Manning's red Jeep Cherokee. Fearing that eye contact with Manning had compromised his surveillance, Lussier ordered that the warrant be executed.

Thereupon, Detective Joseph Lennon approached the rear of 151 Doyle Avenue and saw Manning, whom he knew and with whom he had conversed on other occasions, standing outside the Cherokee and in front of the garage, holding a brown briefcase in his left hand. Lennon identified himself as a police officer and, with gun drawn, ordered Manning to stop. Manning, ignoring this directive, walked slowly into the garage with briefcase in hand, closing and locking the door behind him. Manning's rottweiler, loose in the driveway, delayed Lennon's pursuit of Manning for three to five minutes. Once inside the garage, Lennon found and seized the briefcase and its contents, inter alia: two bags of cocaine weighing 124.64 grams, various drug paraphernalia, a loaded 9 millimeter handgun, and six copper pipe bombs. Lennon did not, however, find Manning in his subsequent search of the house.

Meanwhile, Lussier, having ordered the raid, drove to the front of 151 Doyle Avenue, entered the front door, and proceeded to the basement, where he found a broken window through which Manning had likely escaped. One week later, Manning turned himself in to the police.

II.

DISCUSSION

  1. Motion for Acquittal

    Manning argues that there was insufficient evidence to support his conviction for using a destructive device 1 during and in relation to a drug trafficking crime, and so the district court erred in denying his motion for acquittal on Count II. We review the district court's disposition of a motion for acquittal de novo, viewing the evidence, and all reasonable inferences that may be drawn therefrom, in the light most favorable to the government. United States v. Loder, 23 F.3d 586, 589-90 (1st Cir.1994).

    Approximately one month after oral arguments in this case, the Supreme Court decided Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and concluded that "use" of a firearm in 18 U.S.C. § 924(c)(1) means "active employment of the firearm" which "includes brandishing,

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    displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 505, 508. Our careful review of the record reveals that the government's evidence was insufficient to show "use" under the Bailey standard. The government did not present any evidence that Manning had brandished, displayed, bartered, struck someone with, fired/detonated or attempted to fire/detonate either the 9 millimeter handgun or the six pipe bombs. The evidence presented at trial was simply that Manning had carried the briefcase containing the gun, pipe bombs, drugs, and drug paraphernalia into the garage of 151 Doyle Avenue and nothing more.

    The reach of 18 U.S.C. § 924(c)(1), however, extends beyond the use of a firearm. Section 924(c)(1) applies to any person who either "uses or carries a firearm." 18 U.S.C. § 924(c)(1) (emphasis added). At issue, therefore, is whether the government succeeded in presenting evidence sufficient to show that Manning was guilty of carrying a firearm during and in relation to any drug trafficking crime. Conviction under § 924(c)(1) requires proof beyond a reasonable doubt that Manning: (1) committed the drug trafficking crime of possession with intent to distribute as charged in the indictment, (2) knowingly carried a firearm, and (3) did so during and in relation to the drug trafficking crime. See United States v. Wilkinson, 926 F.2d 22, 25-26 (1st Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991), and overruled on other grounds by Bailey, --- U.S. at ----, 116 S.Ct. at 509. Because Manning has not challenged the sufficiency of the evidence of the first element, we restrict our analysis to the last two elements and consider each in turn.

    By narrowing the interpretation of "use" to instances of active employment, the Bailey Court recognized that the "carry" prong would take on a new significance. Accordingly, the Court remanded Bailey and its companion case, Robinson v. United States, --- U.S. ----, 115 S.Ct. 1997, 131 L.Ed.2d 999 to the District of Columbia Circuit to consider liability for Bailey and Robinson under the "carry" prong of § 924(c)(1). Bailey, --- U.S. at ----, 116 S.Ct. at 509. In Bailey and Robinson, the firearms were found in the trunk of a car and in a locked trunk in a bedroom closet, respectively. Id. at ----, 116 S.Ct. at 503-04. Determining whether firearms found in these locations were carried will require the District of Columbia Circuit to test the limits of the proper understanding of "carry" in § 924(c)(1). We need not determine the precise contours of the "carry" prong here, however, as Manning's actions meet any reasonable construction of the word. See Smith v. United States, 508 U.S. 223, 228-30, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993) (noting that words not defined by statute should be given their ordinary or common meaning).

    The word "carry" is variously defined as "to move while supporting (as ... in one's hands or arms)," "to move an appreciable distance without dragging," and "to bring along to another place." Webster's Third New International Dictionary 343 (1986). Manning's alleged actions readily meet all of these definitions. The government presented the testimony of Detective Lennon that he saw Manning standing outside his Cherokee and in front of the garage of 151 Doyle Avenue, holding the briefcase; that he watched Manning, while holding the briefcase in his left hand, walk into the garage; and that minutes later upon discovering the briefcase in the garage, he opened it and found, inter alia, a loaded 9 millimeter handgun and six pipe bombs. A reasonable juror could easily conclude from this evidence that Manning had carried the handgun and pipe bombs. In walking from the Cherokee to the garage while holding the briefcase in his left hand, Manning certainly was "moving" the briefcase "while supporting" it in his hand. And if Manning was carrying the briefcase, he necessarily was carrying the contents thereof, namely, the handgun and pipe bombs.

    The government also presented ample evidence from which a reasonable juror could conclude that Manning carried the gun and bombs "during" and "in relation to" the crime of possession with intent to distribute. Evidence that Manning carried the gun and pipe bombs contemporaneously with the two bags of cocaine and the drug paraphernalia

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    readily satisfies the "during" requirement. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1151 (1st Cir.1995) (holding that gun "carried at a time when the offense was in progress" constituted...

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