U.S. v. Wilkinson

Citation926 F.2d 22
Decision Date08 November 1990
Docket NumberNo. 90-1376,90-1376
PartiesUNITED STATES, Appellee, v. Robert J. WILKINSON, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John H. LaChance, Framingham, for defendant, appellant.

A. Clayton Spencer, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE, * Senior District Judge.

BREYER, Chief Judge.

The convictions before us arise out of three events:

1) In May 1988, state police found cocaine and guns in Robert Wilkinson's house.

2) In October 1988, Wilkinson jumped bail.

3) In September 1989, federal agents found Wilkinson at the home of friends; they also found cocaine and guns in Wilkinson's duffel bag.

Subsequently, a federal jury convicted Wilkinson of:

1) simple possession of cocaine (in 1988), 21 U.S.C. Sec. 844(a);

2) jumping bail, 18 U.S.C. Sec. 3146(a)(1);

3) possessing cocaine with intent to distribute it (in 1989), 21 U.S.C. Sec. 841(a)(1);

4) carrying or using a gun in connection with a drug offense (in 1989), 18 U.S.C. Sec. 924(c); and

5) as a previously convicted felon, unlawfully possessing a gun (in 1988 and 1989), 18 U.S.C. Sec. 922(g)(1).

Wilkinson appeals these convictions. After reading his lengthy brief and the record with care, we find his arguments unpersuasive, and we affirm the convictions. We shall explain why.

I The 1989 Search

On September 24, 1989, law enforcement officers found Wilkinson (who had jumped bail) at the home of his friends, Mr. and Mrs. Wilkes. They searched Wilkinson's duffel bag and found drugs and guns. Wilkinson says that, because the officers had no search warrant but only an arrest warrant, the Constitution forbids their search of his duffel bag, and, the court should have suppressed the drugs and guns as evidence. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990); Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685 (1969). The Government replies that the search was constitutional because Wilkinson gave his consent. The issue before us is whether the district court could lawfully find that Wilkinson's consent was voluntary, not "coerced." See Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973) (defendant's consent does not validate search if his "will has been overborne").

We review the district court's fact finding only for "clear error." United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). The record reveals that four law enforcement officers entered the Wilkes' home. Wilkinson appeared at the top of a flight of stairs, hands on his head, telling the officers to leave Mrs. Wilkes alone, adding that "everything was his." Mrs. Wilkes gave the officers permission to search the house. Wilkinson's duffel bag was in the basement. Wilkinson then specifically told the officers they could search his duffel bag.

The record also shows that the officers had entered the house with guns drawn, there was considerable commotion, they had handcuffed and frisked Wilkinson, he repeatedly asked them to leave Mrs. Wilkes alone, he initially denied having any guns or drugs in the house, one of the officers then threatened they would "tear the place apart" unless he told them more, and he had taken drugs earlier in the evening.

On the other hand, the record supports the district court's findings that Wilkinson's "cognitive abilities were not compromised" by his earlier use of drugs, that the officers "lowered their weapons" once Wilkinson "was secured," that he "acted in a calm, professional manner and appeared to understand his options clearly," that he was "embarrassed" that the officers had found him in the home of his "good friends" whom he wished "to save ... from further involvement," and that he explicitly said the officers could search his bag, he told the officers where his bag could be found, and he pointed out the location of the guns in the bag.

Given these findings of fact, we cannot say, as a matter of law, that Wilkinson's consent was coerced. His will was not "overborne," in the sense of his having suffered a "critically impaired ... capacity for self-determination." Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047. That is to say, Wilkinson consented "voluntarily," in the sense that neither drugs nor any other circumstance made him unaware of, or mistaken about, any key fact, or unable physically to decide or to choose whether or not to agree to the search. See id. at 226, 93 S.Ct. at 2047. Moreover, the agents did not coerce his voluntary decision by improperly placing before him an impermissible choice; they did not, for example, threaten him with a gun in order to elicit an otherwise "voluntary" consent. See id. at 224 & n. 7, 93 S.Ct. at 2046 & n. 7. One of the officers did "threaten to tear the place apart," but the district court could reasonably find that this statement, in light of Mrs. Wilkes' consent to a search of the house, amounted (in rather strong terms) to no more than a permissible promise to search the house thoroughly and (likely) find the guns eventually anyway. Consequently, we cannot say that the search violated the federal Constitution; and admission of the evidence was lawful.

II The 1989 Drug/Firearm Offense

The jury convicted Wilkinson of violating 18 U.S.C. Sec. 924(c)(1), which provides criminal punishment for any person who

during and in relation to any ... drug trafficking crime ... uses or carries a firearm....

Wilkinson concedes, for the sake of argument, that the law enforcement officers found two guns and four ounces of cocaine in his bag and that the jury might have convicted him of a relevant "drug trafficking crime." He argues, however, that it could not lawfully convict him of the firearm crime for three reasons.

First, he says that the evidence was not sufficient to convict. He says that the guns were buried in the duffel bag, one wrapped in a towel, the other zipped up in a small leather bag. Hence, they were not readily available for use during, and therefore were not "use[d]" in "relation to," the drug crime.

The legal question is simply whether a reasonable juror could conclude that Wilkinson had control over a gun and that it facilitated the commission of his drug crime, namely distributing cocaine to others from the duffel bag. See United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 166, 107 L.Ed.2d 123 (1989) ("it was sufficient to show that the firearm furthered the commission of the drug trafficking crime"); United States v. LaGuardia, 774 F.2d 317, 321 (8th Cir.1985) ("Section 924(c)(1) reaches the possession of a firearm which in any manner facilitates the execution of a felony."); United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (Kennedy, J.) ("If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon or intimidate others, whether or not such display or discharge in fact occurred, then there is a violation of the statute."). The fact that the guns were in the same duffel bag as the drugs helps to support such a conclusion. See United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990) ("It is permissible for juries to infer that firearms found among a drug trafficker's paraphernalia are used to further the drug venture and are thus used in relation to drug trafficking within the meaning of section 924(c)(1)."); United States v. Lyman, 892 F.2d 751, 752-54 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 45, 112 L.Ed.2d 21 (1990); United States v. Boyd, 885 F.2d 246, 250 (5th Cir.1989); LaGuardia, 774 F.2d at 321.

Of course, other facts about the location of the drugs, namely the facts that the guns were somewhat removed from the drugs within the bag and were hard to unpack, support appellant's claim that the guns did not facilitate the crime. But, ultimately, whether or not the guns helped appellant commit the drug crime is a matter for a jury, applying common-sense theories of human nature and causation. A juror might think it clear beyond a reasonable doubt that a person who carried guns so near four ounces of drugs intended the guns for protection when carrying or distributing the drugs. We cannot say that such a juror would be an unreasonable human being. And, consequently, we must find the evidence sufficient to support conviction. See United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986); see also Young-Bey, 893 F.2d at 181; Lyman, 892 F.2d at 752-54; Boyd, 885 F.2d at 250; LaGuardia, 774 F.2d at 321. But see United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988) (distinguished in United States v. Hadfield, 918 F.2d 987, 997 (1st Cir.1990)).

Second, Wilkinson says that the trial court should have instructed the jury that, to convict, it must find

that the defendant ... had a specific intent to use or have the firearms available for use, if needed, in the drug trafficking crime he was accused of committing.

The court, however, did give an instruction that embodied the essence of Wilkinson's request. The court told the jury

It is not enough to show that he possessed the guns, just possessed them; rather, the Government has to prove that the guns in some way facilitated the drug crime. If you find that the defendant carried guns on one or both dates, the question is for what purpose did he do so? Was it to protect the drugs or himself in connection with the drug transaction, or was it to protect jewelry, or because he had a general...

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