U.S. v. Robinson

• Decision Date: 08 October 1993
• Docket Number: No. 92-3062,92-3062
• Citation: 997 F.2d 884
• Parties: , 62 USLW 2062 UNITED STATES of America, Appellee, v. Candisha S. ROBINSON, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 884

997 F.2d 884

302 U.S.App.D.C. 194, 62 USLW 2062

UNITED STATES of America, Appellee, v. Candisha S. ROBINSON, Appellant.

No. 92-3062.

United States Court of Appeals,

District of Columbia Circuit.

Argued Dec. 7, 1992.

Decided June 18, 1993.

Order Granting Rehearing En Banc

and Vacating Judgment Oct. 8, 1993.

David B. Smith (appointed by this Court), for appellant.

Peter V. Taylor, Asst. U.S. Atty., of the bar of the Superior Court of the District of Columbia, pro hac vice, by special leave of court, with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black, and William E. Lawter, III, were on brief, for appellee.

Before: MIKVA, Chief Judge, SILBERMAN and HENDERSON, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

Dissenting opinion filed by Circuit Judge HENDERSON.

MIKVA, Chief Judge:

Candisha Robinson was convicted after a jury trial of numerous drug-related offenses including "us[ing] or carr[ying] a firearm" during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). Ms. Robinson concedes that the evidence was sufficient to support a finding that she constructively possessed the unloaded derringer found in the locked trunk in her apartment, but argues that her conviction under section 924(c)(1) should be reversed because the evidence failed to establish that the gun was actually used during and in relation to the drug trafficking offenses for which she was convicted. Ms. Robinson also contends that the district court erroneously increased her sentence by two points on the grounds that she was a "supervisor" to a drug trafficking scheme, and erroneously imposed a $300 rather than a $200 special assessment fee. We agree with appellant, with respect to all three arguments, and therefore reverse her conviction under section 924(c) and remand to the district court for resentencing.

I.

According to the government's evidence, on July 15, 1991, Officer Larry Hale approached appellant's sister, Veloria Robinson, and told her that he wished to buy some crack cocaine. Veloria took Officer Hale to Apartment 3, 1722 West Virginia Avenue, N.E. and knocked on the door. When appellant Candisha Robinson opened the door, Veloria explained that Officer Hale was trying to get something. Candisha asked him what he wanted. Officer Hale said that he wanted a "twenty" and followed Veloria into the apartment. Officer Hale saw Veloria and Candisha go into the apartment's one bedroom and observed Candisha hand Veloria a rock of crack cocaine. Veloria then gave the rock to Officer Hale in exchange for $20 in marked money.

The next evening, Officer Hale returned to the apartment. As he was walking up the steps, he was approached by a man named Kwarme Parker. Parker stated that Veloria was inside the apartment, but that he also lived in the apartment and could serve him. Parker went into the apartment while Officer Hale waited in the hallway outside the front door. When Parker returned to the hallway, he gave Officer Hale a small rock of crack cocaine in exchange for marked money.

About thirty minutes later, a search warrant was executed at the apartment. Inside a locked trunk in the bedroom closet, the police found a .22-caliber derringer and holster, a 1990 tax return signed by Candisha, a letter from Candisha's employer, two rocks of crack cocaine weighing a total of 10.88 grams, $20 in marked money from the sale of cocaine made by Mr. Parker, and $42.80 in other cash. Other papers bearing appellant's name were found in other parts of the bedroom, including a lease which identified appellant and another man as the principal lessees. A plastic cassette tape case was also found in the bedroom which contained a quantity of plastic ziplock bags.

At trial, the government called an expert witness, Detective David Stroud, who testified that the rock of cocaine in the locked trunk would have a $700-800 street value, as-is, but a $1400 value if it was broken down into $20 chunks. With respect to the firearm found in the apartment, Detective Stroud characterized the .22-caliber derringer as a "second gun"--the kind of gun a drug dealer might hide on his person for use until he could get to his "real gun." Mr. Stroud also testified that guns are generally used by drug dealers to protect themselves from rival drug dealers, the police, and employees within the organization.

When asked to describe a "crack house," Detective Stroud explained that there are two basic varieties. In the first type of crack house, he said, drugs are "manufactured on the premises, cut up and bagged up for street-level distribution." He added that "maybe in some cases they even sell drugs from the premises." However, Detective Stroud noted, this would be taking "a very big risk because you're inviting a raid ... unlike selling on the street." In the other type of crack house, people come just to smoke the drug. "There may be some limited selling of the drug going on, and they even rent the pipes to you for $2 a pipe in some of them."

Ms. Robinson took the stand in her defense. She admitted that she leased the apartment and received rent money from her sister Veloria, Kwarme Parker, and Sharine McKinney. She also acknowledged that she owned the foot-locker in which the derringer and crack were found, and that she knew that Ms. McKinney used drugs, and that Mr. Parker was selling drugs (but not out of her apartment). Ms. Robinson insisted that she had no knowledge of the drugs or the derringer found in her footlocker. She explained that she had taken Mr. Parker in temporarily because he had no place to go, but had become upset with his drug-dealing and had given him two weeks to find somewhere else to stay. She admitted allowing him to use the footlocker to safeguard his money, but claimed that she tried to prevent him from bringing drugs into her apartment by searching him and inspecting the footlocker regularly. This account was corroborated in significant respects by the testimony of Ms. Bey and Ms. McKinney. Both of them testified that appellant refused to allow Mr. Parker to sell drugs from the apartment; Ms. McKinney specifically recalled that appellant often searched Mr. Parker when he entered the apartment to ensure that he was not carrying drugs.

Ms. Robinson presented an alibi for the distribution charge. She testified that she was not in the apartment on the evening of July 15 because she was spending the night with her boyfriend in a motel. Her boyfriend, Mr. Founteroy, corroborated this story by testifying that they spent the day together going fishing and then spent the night together at a hotel. This alibi was partially contradicted by Ms. McKinney, who testified that she thought appellant was home for part of the evening, until about 10 P.M., which was almost an hour after Officer Hale said he saw appellant recover drugs from the bedroom.

Lastly, appellant read to the jury a portion of the transcript from Veloria Robinson's plea hearing. At the plea hearing, Veloria Robinson stated that it was her girlfriend, not appellant, who retrieved the crack that she sold to Officer Hale on July 15. In rebuttal, the government introduced testimony of an officer who stated that he was unable to find an original receipt for the hotel at which appellant and her boyfriend claimed they stayed on July 15.

Appellant Candisha Robinson was found guilty on all six counts of the indictment, including distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); possession with intent to distribute a quantity of cocaine base in excess of five grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); commission of the charged drug offenses within 1000 feet of a school, in violation of 21 U.S.C. § 860(a); maintenance of a building for the purpose of manufacturing, storing, distributing or using cocaine base, in violation of 21 U.S.C. § 856(a); and use or carrying of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).

Ms. Robinson submitted a post-verdict motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) directed solely to the count charging her with violating section 924(c)(1). Judge Richey denied the post-verdict motion in a memorandum opinion and order filed on December 18, 1991. 779 F.Supp. 606. At the sentencing hearing, Judge Richey adopted the Probation Officer's recommendation that Ms. Robinson's offense level be increased by two, from 28 to 30, because the evidence suggested that she was a "supervisor" of the drug trafficking scheme. Ms. Robinson was sentenced to a total of 157 months imprisonment, a four year term of supervised release and a special assessment of $300.

II.

Ms. Robinson challenges the sufficiency of the evidence to support her conviction under section 924(c). See 18 U.S.C. § 924(c)(1). Ms. Robinson concedes that the evidence was sufficient to support a finding that she constructively possessed the derringer found in the locked trunk in her bedroom closet, but argues that the evidence failed to establish that she actually "used" the gun "during and in relation to" the drug trafficking offenses for which she was convicted--as required by section 924(c)(1). The government, for its part, does not argue that Ms. Robinson carried, brandished or otherwise used the derringer during or in relation to the distribution of the drugs to Officer Hale. Rather, the government argues that we should affirm Ms. Robinson's conviction because Ms. Robinson's apartment was a "crack house," and in crack houses, the mere proximity of a gun to drugs is sufficient to support the inference that the defendant used the gun to protect the possession of the drugs.

When reviewing these respective claims, we are, of course, bound to view the evidence in the light most favorable to the government AND respect the right of the jury to determine the...