Rattigan v. U.S.

• Decision Date: 04 August 1998
• Docket Number: No. 96-4160,96-4160
• Parties: Barry G. RATTIGAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 551

151 F.3d 551

Barry G. RATTIGAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 96-4160.

United States Court of Appeals Sixth Circuit.

Argued Feb. 4, 1998.

Decided Aug. 4, 1998.

Richard A. Cline (argued), Mitchell, Allen, Catalano & Boda, Columbus, OH, Barry G. Rattigan, Ray Brook, NY, Brian D. Dunbar (briefed), Cleveland, OH, for Petitioner-Appellant.

Gary L. Spartis (argued and briefed), Office of the U.S. Attorney, Columbus, OH, for Respondent-Appellee.

Before: MARTIN, Chief Judge; NORRIS and CLAY, Circuit Judges.

BOYCE F. MARTIN, Jr., Chief Judge.

Barry G. Rattigan appeals the judgment of the district court to deny his motion under 28 U.S.C. § 2255 vacating his sentence for aiding and abetting in the use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. The basis of Rattigan's collateral attack on his conviction is his contention that an instruction given to the jury during his trial on the term "use" was erroneous in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because we find that there was sufficient evidence for a properly instructed jury to find that Rattigan aided and abetted the use of a firearm, we do not believe Rattigan was prejudiced by the erroneous jury instruction. Therefore, we AFFIRM the district court.

FACTS

In May 1991, Special Agent Frank D'Alesio, from the Bureau of Alcohol, Tobacco, and Firearms (ATF), began investigating several individuals for drug trafficking in Columbus, Ohio. During the investigation, Agent D'Alesio learned from Richard Ferguson, a confidential informant and a convicted felon, that several individuals were trafficking crack cocaine from an apartment located at 376 South 18th Street in Columbus. Consequently, Agent D'Alesio arranged for two controlled purchases of cocaine from the 18th Street apartment. On June 17, D'Alesio and Ferguson went to the address in D'Alesio's undercover vehicle. While Agent D'Alesio waited outside, Ferguson used funds that had been pre-recorded by the ATF to purchase crack cocaine at the apartment. After Ferguson completed the illicit transaction, he returned to D'Alesio and gave him the crack he had just bought from Rattigan. He told D'Alesio that Rattigan and someone named Tony, who was armed with a handgun, had sold him the crack cocaine in the apartment. At trial, Ferguson testified that Tony opened the door with a gun in his hand. Tony then took his money, then tucked the gun under his arm and exchanged the money with Rattigan for crack cocaine.

Ferguson admitted to having purchased drugs from Rattigan and Tony a number of times in the past and at different locations around the city. During these transactions, Rattigan, Tony, or both would be present. Ferguson testified further that during several of these prior drug transactions only Tony was armed with a handgun and that he kept it on his side or in his hand. Ferguson never saw Rattigan with a handgun. Of the working relationship between Rattigan and Tony, Ferguson testified that Rattigan had to approve of the drug sales in order for a transaction to go forward.

On June 18th, Ferguson returned to the 18th Street apartment to make another controlled drug purchase, but this time he was accompanied by undercover ATF agent Larry Ford. The two approached the apartment and knocked on the door. As had been the procedure in past transactions, Tony opened the door, admitted the buyers, and shut the door. This time, however, neither Ferguson nor Ford saw Tony with a gun. Once inside the apartment, Ferguson and Ford saw Rattigan on the other side of the room by a card table, holding a ceramic plate containing pieces of crack cocaine. Rattigan told Ford to approach the table. When Ford paid Rattigan $25, Rattigan told Ford to select a piece of crack from the plate.

That night, ATF agents executed a search warrant at the apartment. According to the agents, when they entered the apartment, Rattigan and Tony ran from the east bedroom into the west bedroom. Rattigan was carrying a ceramic plate. Tony escaped through the window, while Rattigan shoved the plate through another window but was apprehended before he could escape. During a search incident to Rattigan's arrest, agents discovered money in his pockets, including marked bills from the two controlled drug buys. After searching the apartment, the agents found a .45 caliber semi-automatic pistol on the floor in the east bedroom, where the defendants had first been seen when the agents entered the apartment. The gun was loaded with eight rounds, including one round in the chamber. Also in the east bedroom, agents discovered a bundle of money on the bed. The bundle included marked bills from the two controlled purchases made by Ferguson and Ford. In the west bedroom, where Rattigan was arrested, agents discovered ammunition for various caliber weapons. Ferguson testified that the gun presented by the government at trial appeared to be the same type, color, and size as the one he had seen on Tony during previous drug transactions.

PROCEDURE

On July 1, 1991, a federal grand jury for the Southern District of Ohio returned a four-count indictment against Rattigan. Counts One and Two charged Rattigan with knowingly and intentionally distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Three charged Rattigan with knowingly and intentionally possessing with the intent to distribute over five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and A jury convicted Rattigan of all counts, and this Court affirmed his conviction and sentence. United States v. Rattigan, 996 F.2d 1218, 1993 WL 190910 (6th Cir. June 2, 1993) (unpublished disposition). In a motion to vacate his sentence under 28 U.S.C. § 2255, Rattigan challenged: (1) whether his § 924(c)(1) conviction is valid in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); and (2) whether counsel rendered ineffective assistance. The district court denied his motion as without merit. Upon review, this Court granted Rattigan's application for a certificate of appealability with regard to whether the jury "necessarily based" its verdict to convict him on a constitutionally valid instruction as to the meaning of "use" under § 924(c)(1). At trial, Rattigan made no objection to the instruction.

(b)(1)(B)(iii); and Count Four charged Rattigan with knowingly aiding and abetting the use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 on or about June 17 and 18, 1991.

STANDARD OF REVIEW

In reviewing the denial of a 28 U.S.C. § 2255 petition, this Court applies a de novo standard of review of the legal issues and will uphold the factual findings of the district court unless they are clearly erroneous. Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994). In a collateral attack, to obtain post-conviction relief for an erroneous jury instruction, to which no objection was made at trial, a defendant must show both cause excusing his procedural default and actual prejudice from the alleged error. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Williams v. United States, 98 F.3d 1052, 1054 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1327, 137 L.Ed.2d 488 (1997).

DISCUSSION

Erroneous Jury Instruction

Rattigan was charged in Count Four of his indictment with aiding and abetting the "use" of a firearm in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. The instructions to the jury stated in pertinent part:

A firearm may be "used" by bearing the firearm on one's person or under one's immediate control or by keeping a firearm in one's possession and under one's control in a house. Possession may be actual or constructive ... However, it is not necessary to show that the firearm was discharged, pointed or displayed. Even a firearm kept hidden during a drug transaction may be used in relation to a drug transaction crime if it facilitated the crime by emboldening the defendant, giving him the security and confidence to undertake the drug offense, or if the firearm is kept ready to protect a drug house, thereby safeguarding and facilitating the drug transaction.

J.A. at II94-95.

This instruction permitted the jury to convict Rattigan under the "fortress theory" or "facilitation theory." These theories interpreted the "use" and "carry" language of § 924(c)(1) broadly and allowed for a conviction under this statute if it reasonably appeared that the firearm found on a premises controlled or owned by a defendant was in his actual or constructive possession and was to be used to protect the drugs or to otherwise facilitate the drug transaction. United States v. Henry, 878 F.2d 937, 944 (6th Cir.1989). These theories have not been followed after Bailey. See United States v. Anderson, 89 F.3d 1306, 1315 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 786, 136 L.Ed.2d 728 (1997); United States v. Moore, 76 F.3d 111, 114 (6th Cir.1996); United States v. Bingham, 81 F.3d 617, 623-24 (6th Cir.1996).

In Bailey, the Supreme Court adopted a much narrower interpretation of the term "use" under § 924(c)(1) and rejected the theory that the "use" prong of § 924(c)(1) could be satisfied upon a showing that the presence of the firearm "facilitated" the commission of the drug offense, or by the mere possession of a firearm by the offender. Bailey, 516 U.S. at 148-49, 116 S.Ct. 501. Instead, Bailey redefined "use" as "active employment," thereby requiring that the firearm be "an operative factor in relation to the predicate offense." Id. at 143, 116 S.Ct. 501. The types of culpable behavior that amount to "use" include: brandishing, displaying, bartering, striking with, firing or attempting to fire a firearm. Id. at 148, 116 S.Ct. 1035. Under the new...