U.S. v. Hill

• Decision Date: 22 June 1992
• Docket Number: No. 91-1576,91-1576
• Parties: UNITED STATES of America v. James S. HILL, Jr., James Hill, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

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967 F.2d 902 UNITED STATES of America
v.
James S. HILL, Jr., James Hill, Appellant. No. 91-1576. United States Court of Appeals,
Third Circuit. Submitted Jan. 27, 1992.
Decided June 22, 1992.

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Joel H. Slomsky, Philadelphia, Pa., for appellant.

Joseph T. Labrum, III, Office of U.S. Atty., Philadelphia, Pa., for appellee.

Before: STAPLETON, SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

James Hill was convicted of various drug and weapons offenses. In this appeal, he contends that (1) there was insufficient evidence to support his conviction of illegal use of a firearm in relation to a drug crime, (2) a warrantless search of his store violated his Fourth Amendment rights, and (3) certain testimony regarding communications between him and his wife should have been excluded at trial. We will affirm.

I.

After serving the minimum term of a 2 1/2 to 10 year state sentence for voluntary manslaughter, Hill was paroled in 1984. Under the terms of his parole, Hill was forbidden from using or possessing controlled substances, owning or possessing weapons, engaging in assaultive behavior, or consuming alcohol. ¹ On March 13, 1989, Hill's estranged wife Elnora called her husband's parole agent, Steven Nisenfeld, to report that Hill had assaulted her. In an interview conducted later that day, Mrs. Hill told Nisenfeld and his supervisor, Christopher Pandolfo, that Hill kept drugs and a gun in the home they jointly owned. (Hill was living elsewhere at the time.) At that point, the parole agents decided to take Hill into custody. They then accompanied Mrs. Hill to the residence, where she admitted them. In the ensuing search, Nisenfeld and Pandolfo found rifles, cocaine, and a .22 caliber pistol. Mrs. Hill stated that all these items belonged to her husband.

Mrs. Hill then told the parole agents that Hill would likely be found at his nearby barbecued chicken store. The agents called the Philadelphia Police Department for assistance, and after the police arrived, Hill was arrested for violating the terms of his parole. Nisenfeld and the police officers then took Hill to his apartment above the store, where two more guns were seized. After this, Hill was driven to the district office of the parole department for processing on parole violation charges.

The next day, March 14, 1989, Mrs. Hill returned to the parole office to complete

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her written statement. At that time, she stated that while attempting to secure the store after Hill's arrest, she and her son had discovered a rifle in an unused ice machine and a box containing a large amount of cash and what appeared to be drugs. The parole agents sought and received her permission to retrieve this contraband from the store. Once again the parole agents accompanied Mrs. Hill to the store, which she entered by removing chicken wire from a rear window. Pandolfo followed through the window. Once inside, Mrs. Hill pointed to an ice machine. Pandolfo opened its lid, finding the barrel and stock of a .22 caliber Marlin rifle. Mrs. Hill then pointed to a stack of boxes immediately to the right of the ice machine. These boxes contained 780 vials of cocaine base, 243 packets of cocaine powder, two pounds of marijuana, and over $8,000 in United States currency. Mrs. Hill identified the drugs as those that had been delivered to her husband at the marital home by a dealer named "Jack" several days before. Pandolfo handed these items to Nisenfeld through the window.

Hill was charged with possession of a controlled substance with intent to distribute; ² possession by a convicted felon of a firearm; ³ and use of a firearm during and in relation to a drug trafficking offense. ⁴ He moved to suppress all evidence taken from the marital home, the apartment and the store, and to bar his wife's testimony. Both motions were denied. At trial, Mrs. Hill detailed the verbal and physical abuse Hill inflicted upon her in connection with his drug dealing. Hill denied purchasing or selling drugs, and denied owning any guns except the rifles. He claimed he bought the rifles in the early 1970s for hunting purposes, but that his wife planted the Marlin rifle and drugs found in the store.

A jury convicted Hill of both counts of possession of a firearm by a convicted felon, one count of use of a firearm during and in relation to a drug crime, and two counts of possession of cocaine with intent to distribute.

II.

A. Sufficiency of Evidence of Unlawful Use of Firearm During and in Relation to a Drug Crime

Hill contends that the evidence was insufficient to support his conviction for unlawful use of the Marlin rifle found in the ice machine in relation to his illegal possession of cocaine. We must determine whether the record, when viewed in the light most favorable to the government, contains substantial evidence to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Reyes, 930 F.2d 310, 312 (3d Cir.1991). If a rational trier of fact could have found that the government proved beyond a reasonable doubt the essential elements of the crime charged, we must affirm the conviction. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1637, 113 L.Ed.2d 733 (1991); United States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir.1989).

Hill maintains that the rifle was not, as a matter of law, used "in relation to" a drug crime. Possession of a firearm constitutes use under 18 U.S.C. § 924(c) where there is evidence "that the defendant intended to have the firearm available for use or possible use during a crime of violence or drug trafficking crime and that the firearm was placed in a spot where it was readily accessible at that time."

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Reyes, 930 F.2d at 313-14. ⁵ On the other hand, the mere availability of a firearm nearby does not constitute use "in relation to" a drug offense. Theodoropoulos, 866 F.2d at 597.

There was sufficient evidence of Hill's use of the gun "in relation to" the predicate drug crimes of which he was convicted. Mrs. Hill found the Marlin rifle in the ice machine on March 13, 1989. The rifle stock was separated from the barrel, but the rifle was operable. It was not loaded, however, and no ammunition was found on the premises. Immediately next to the ice machine was a box containing drugs and cash. These drugs had been delivered to Hill's home several days earlier. Hill told his wife that he was going to sell the drugs from the store, and asked her to join him. According to Mrs. Hill, Hill routinely carried guns for protection. Agent Pandolfo saw both the Marlin rifle and the drugs in the chicken store, the site of at least some of the predicate drug transactions.

This evidence permits the conclusion that Hill (1) possessed the drugs found at his store and intended to distribute them; (2) placed the rifle near his drugs and cash so he could get it quickly and efficiently; and (3) intended to have the gun available for protection during drug transactions conducted at the store. The jury could have reasonably inferred from these facts that Hill used the rifle in relation to his illegal possession of controlled substances.

Hill contends that his conviction was improper because the rifle was hidden, unloaded, and disassembled, and because no ammunition was found at the scene. Hill relies upon Theodoropoulos, where we rejected the view that "the mere availability of a firearm nearby, as distinguished from its open display, is equal to use 'in relation' to an offense." 866 F.2d at 597 (emphasis added). We agree with the government that Theodoropoulos is distinguishable from the present case, and does not require proof of open display.

In Theodoropoulos the defendant had been charged with using four different firearms in...