De Jesus v. U.S.

• Decision Date: 22 October 1998
• Citation: 161 F.3d 99
• Parties: Manuel DeJESUS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Docket 97-2328.
• Court: U.S. Court of Appeals — Second Circuit

Page 99

161 F.3d 99

Manuel DeJESUS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Docket 97-2328.

United States Court of Appeals, Second Circuit.

Argued June 25, 1998.

Decided Oct. 22, 1998.

Edward S. Zas, Of Counsel, The Legal Aid Society Federal Defender Division Appeals Bureau, for Appellant.

David C. Finn, Dietrich L. Snell, Of Counsel, (Mary Jo White, United States Attorney for the Southern District of New York), for Appellee.

Before: VAN GRAAFEILAND and KEARSE, Circuit Judges, and VANCE, District Judge. ¹

VANCE, District Court Judge.

Manuel DeJesus appeals a district court order denying his petition to vacate his conviction of using or carrying a firearm during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Relying on the United States Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), DeJesus argues that the trial court gave the jury an erroneous instruction regarding the meaning of "use" under § 924(c). The district court denied DeJesus's petition. We affirm.

I. FACTUAL BACKGROUND

Manuel DeJesus and two codefendants, Ramon Gregorio Salazar and Pedro Camilo, were charged in a seven count indictment with various weapons and drug trafficking violations. Five of the counts variously charged the defendants with distributing and possessing with the intent to distribute cocaine and cocaine base, as well as with conspiracy to commit those offenses, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), 841(b)(1)(A) and 846, respectively. A separate count charged that on December 6, 1988 DeJesus and Salazar used and carried a firearm in the course of drug trafficking in violation of 18 U.S.C. § 924(c). A final count charged all of the defendants with using and carrying a firearm during a drug trafficking crime on December 7, 1988.

A jury convicted DeJesus of all of the counts on June 9, 1989. At trial, the government introduced the following evidence to support the weapons charges. On December 6, 1988, Detective Frank Garrido, a New York City Police officer acting undercover, went to 2315 Walton Avenue, Apartment 2F, to purchase cocaine. Upon entering the apartment, Garrido observed Juan Ramon Rodriguez holding a silver-plated revolver and another man holding a black pistol. DeJesus was seated at a table, weighing out quantities of cocaine to sell to unidentified customers. Garrido requested an ounce of cocaine. The individual holding the black pistol stated that he would have to first get "the boss," Rey. After placing his gun on a shelf behind the television, this individual briefly left the apartment before returning with Salazar, who then sold Garrido an ounce of cocaine. (Tr. 64-68; App. 18-22; Gov't Ex. 1A.)

Garrido returned to Apartment 2F the following day to purchase additional quantities of cocaine. Upon entering the apartment At trial, Rodriguez testified for the government pursuant to a plea agreement. Rodriguez stated that he had been hired by the drug operation to act as an armed doorman. He testified that DeJesus worked for the drug operation by weighing and selling cocaine to customers. Rodriguez further stated that DeJesus would hold the gun whenever Rodriguez had to leave the apartment. (Tr. 240-41; A 50-51.) The government also introduced evidence showing that DeJesus's left index fingerprint was found on the silver-plated revolver's cylinder. (Tr. 355-58, 373-74; Gov't Ex. 5 & 6.)

                Garrido once again observed Rodriguez with a weapon and DeJesus weighing cocaine.  (Tr. 73;  App. 25.)   Upon seeing Garrido, DeJesus instructed Rodriguez to get Salazar.  Garrido testified that before leaving the apartment, Rodriguez handed his silver-plated revolver to DeJesus.  (Tr. 74;  App. 26.)   Rodriguez returned to the apartment moments later followed by Salazar.  Garrido testified that DeJesus was carrying the revolver when he let Salazar into the apartment.  (Id.)  Salazar and DeJesus proceeded to sell Garrido two ounces of cocaine for $1,200.  (Tr. 76;  App. 28.)   Minutes after Garrido purchased the two ounces of cocaine, agents of the New York Drug Enforcement Task Force executed a search warrant at Apartment 2F.  Upon entering the apartment, the officers saw Rodriguez throw the silver-plated revolver behind the kitchen stove.  (Tr. 153, 252-55;  App. 34, 61-64.)
                

The government used this evidence to support its argument that DeJesus handled the weapon in his capacity as a drug dealer on December 7, 1988. It did not rely on a secondary theory that DeJesus could be found guilty under 18 U.S.C. § 924(c) by his constructive possession of the weapon.

DeJesus did not testify in his own defense. Rather, his attorney argued that DeJesus was arrested in Apartment 2F, not as a drug dealer, but as a purchaser. He tried to rebut the government's fingerprint evidence by introducing the testimony of a former New York City Police Department fingerprint examiner who stated that a right-handed person like DeJesus would not have left the fingerprint found on the gun's cylinder when loading the weapon. (Tr. 596-99.) The expert did admit, however, that the fingerprint might have been placed on the weapon if it had been loaded in a nonconventional manner. (Tr. 601-02.)

The district court instructed the jury that in order to convict DeJesus of violating § 924(c) on December 7, 1988, it must find beyond a reasonable doubt that DeJesus had unlawfully, intentionally, and knowingly carried or used a firearm, or aided or abetted the carrying or use of a firearm, during and in relation to a drug trafficking crime. (Tr. 908; App. 160.) The court separately defined "using" and "carrying" a firearm for the jury. The district court instructed the jury that in order to find that the defendant had "carried" the firearm, "[the gun] must either be within his person or within his reach during the commission of the drug offense." (Tr. 909; App. 161.) The court then defined "use":

The term use is somewhat broader in meaning. It is not necessary for the government to establish that the weapon was actually fired, rather, it must first be shown that the defendant had possession of it in the sense that at a given time he had both the power and intention to exercise dominion or control over it or had aided and abetted another in that effort.

In addition to this possession, there must be some connection to narcotics trafficking. One of the following is required:

Number one, proof of a drug transaction in which circumstances surrounding the presence of a firearm suggests that the defendant intended to have it available for use during the transaction, or, two, the circumstances surrounding the presence of the firearm in a place where drug transactions take place suggests that it was strategically located so that it was quickly and easily available for use during such transaction. (App.161-62.)

Although the court gave an aiding and abetting instruction, it did not instruct the jury on a Pinkerton theory of liability. See Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946) (allowing coconspirator to be convicted of substantive offense committed by another coconspirator After the jury convicted DeJesus on all counts, the district court granted DeJesus's motion for judgment of acquittal on the December 6, 1988 weapons count. The district court sentenced DeJesus to concurrent terms of ten-years imprisonment on the drug charges to be followed by a five-year consecutive term for the December 7, 1988 weapons charge. This Court affirmed DeJesus's conviction by summary order on August 16, 1990. See United States v. Salazar, 914 F.2d 239 (2d Cir.1990).

in furtherance of conspiracy when offense was reasonably foreseeable consequence of conspiratorial agreement).

DeJesus filed this petition under 28 U.S.C. § 2255 on August 30, 1996, challenging his conviction on the 18 U.S.C. § 924(c) charge in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The United States opposed the petition, asserting that the overwhelming evidence at trial indicated that the jury convicted DeJesus for illegally carrying a firearm on December 7, 1988, so that any error in the "use" instruction did not prejudice DeJesus. The district court agreed and denied DeJesus's habeas petition on March 27, 1997. DeJesus appeals that decision.

II. ANALYSIS

A. Bousley v. United States Analysis

We first address whether DeJesus has met the procedural prerequisites to considering the merits of his Bailey claim. DeJesus failed to challenge the use instruction at trial or on direct review. The Supreme Court has stated that "[h]abeas review is an extraordinary remedy and 'will not be allowed to do service for an appeal.' " Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (quoting Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quotation omitted)); see United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998) ("A motion under § 2255 is not a substitute for an appeal."). Thus, if a petitioner fails to assert a claim on direct review, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is "actually innocent" of the crime of which he was convicted. See Bousley, 118 S.Ct. at 1611; Murray v. Carrier, 477 U.S. 478, 485, 496, 106 S.Ct. 2639, 2643-44, 2649-50, 91 L.Ed.2d 397 (1986).

Until the Supreme Court's recent decision in Bousley, we concluded that a prisoner bringing a post-Bailey challenge to a pre-Bailey conviction could establish "cause" for failing to assert the claim on direct review. ² See Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir.1997) (collecting cases) ("Since the broad definition of 'use' that was subsequently rejected by the...