U.S. v. Abrams
| Decision Date | 23 August 1991 |
| Docket Number | 90-3974,Nos. 90-3973,s. 90-3973 |
| Citation | 943 F.2d 52 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Paul J. ABRAMS (90-3973), Ulysses Greene, Jr. (90-3974), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
Defendants, Paul Abrams and Ulysses Greene, Jr., appeal their convictions and sentences on the charges of possession with intent to distribute in excess of five grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and possession of a firearm during and in relation to the commission of a drug offense, in violation of 18 U.S.C. § 924(c). 1
Defendant Abrams raises three claims of error on appeal: (1) the evidence was legally insufficient to support his conviction; (2) the trial court's decision to allow the opinion testimony of a police officer who had been qualified as an expert violated Fed.R.Evid. 704(b); and (3) the court's sentencing of defendant under the Federal Sentencing Guidelines violated his eighth amendment right to be free from cruel and unusual punishment, his fourteenth amendment right to equal protection, and his fifth amendment right to due process and fundamental fairness. Defendant Greene also raises constitutional challenges to his sentence and the following independent issues: (1) the district court erred in not granting a reduction in sentence for acceptance of responsibility and in enhancing the base offense level for obstruction of justice; and (2) defendant received ineffective assistance of counsel at the trial stage in violation of the sixth amendment.
Finding no error, we affirm.
On February 22, 1990, members of the Combined Agency for Narcotics Enforcement Drug Task Force executed a search warrant at a single family residence at 39 Oberlin, Montgomery County, Ohio. After announcing they had a search warrant, the officers forced open the door and entered the apartment. The front door opened into a small living room area, with a kitchen area adjacent and opposite the front door.
Officer Dennis Castle, an investigator from the Montgomery County Sheriff's Office, was the first officer through the door. Upon entering, he saw defendant Greene and Guy Abrams in the kitchen. Castle observed Greene throw what appeared to be two baggies containing a white substance to the floor, one landing next to and one in front of the refrigerator. He also observed Guy Abrams run from the kitchen toward a rear bathroom.
To the right of the door as the officers entered was a couch on which defendant Paul Abrams was seated. According to testimony by Castle, Abrams was seated so as to conceal his hands at his side. After twice warning Abrams to show his hands, and getting no response, Castle grabbed Abrams by the shirt collar and placed him on the floor. As Abrams stood up, currency fell from his lap to the floor. Castle subsequently observed a .38 caliber Derringer pistol on the couch where Paul Abrams' hands had been. Castle then turned his attention to the kitchen where he took Greene into custody, placed him on the floor, and handcuffed him. Other officers subsequently placed Paul Abrams in custody.
All three suspects were placed in the kitchen and searched. No additional weapons or drugs were found on their persons. Guy Abrams was released at this time.
A search of the house was then conducted by the officers. A fully loaded .38 caliber revolver was recovered from the coffee table where it sat in plain sight in front of the couch where Paul Abrams had been seated. A fully loaded 16 gauge shotgun was observed in the corner diagonally opposite from where Abrams had been seated. Additional loaded guns were found in other places in the house. In a closed drawer in the coffee table, Officer James Deschler, another of the participating officers, found a plate containing 22 pieces (19 grams) of a rock-like substance later identified as cocaine base (crack). The two baggies recovered from the kitchen contained an additional 22.44 grams of crack cocaine. Paul Abrams stated that the Derringer was his but the money was not. Greene asserted that the other guns and drugs were his, but that they were for personal use.
Greene and Paul Abrams were indicted on March 20, 1990, and agreed to a bench trial. At the trial, defendant Greene called John Jenkins as a witness. Jenkins testified that Greene and Abrams were users but not sellers of crack. During recess and prior to cross-examination of Jenkins, the prosecuting attorney advised the court and opposing counsel that Jenkins was an informant and that he had previously purchased crack from Greene in an undercover operation and that this sale was the subject of an audio recording. After an attorney was appointed to represent Jenkins, Jenkins was cross-examined. He then stated that Greene had purchased crack cocaine, but that he had never seen him sell it. He further stated that he faked a conversation with Greene by talking to himself, and that he had used his own drugs to give to the police.
Abrams and Greene were both found guilty. Abrams was sentenced to 97 months on count one, and also to a mandatory 60-month consecutive sentence required after conviction of the gun charge. Greene was sentenced to 121 months on count one and 60 months custody on the gun charge.
Abrams argues that there is insufficient evidence to convict him of possession with intent to distribute. Rather, he says, he was "mere[ly] present" at the location when the search occurred and that he did not have either constructive or actual possession. We disagree.
The standard of review for claims of insufficient evidence in a criminal case is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990), cert. denied, 111 S.Ct. 978 (1991).
In addition to the possession with intent to distribute charge, in violation of 21 U.S.C. § 841(a)(1), Abrams was also charged in the alternative with a violation of 18 U.S.C. § 2, the aiding and abetting statute. 2 It is well established that one who is indicted as a principal may be convicted on evidence that shows he only violated the aiding and abetting statute. "All indictments must be read in effect ... as if the alternatives provided by 18 U.S.C. § 2 were embodied in each count thereof." United States v. Lester, 363 F.2d 68, 72 (1966), cert. denied, 385 U.S. 1002 (1967); see also United States v. Young, 527 F.2d 1334, 1336 (5th Cir.1976) ().
Aiding and abetting requires that a defendant " 'in some sort associates himself with the venture, that he participates in it as something he wishes to bring about, and that he seeks by his action to make it succeed.' " United States v. Winston, 687 F.2d 832, 834 (6th Cir.1982) (citing Nye & Nisson v. United States, 336 U.S. 613, 619 (1949)); accord United States v. Lawson, 872 F.2d 179, 181 (6th Cir.), cert. denied, 110 S.Ct. 110 (1989). "Thus, it has been said that aiding and abetting involves (1) an act by a defendant which contributes to the execution of a crime; and (2) the intent to aid in its commission." Lawson, 872 F.2d at 181 (citation omitted).
Defendant is correct when he states that "mere presence" is not enough to convict under either charge. However, the evidence indicates that he not only was present in a drug-selling environment, but also that he was actively aware of the activities occurring around him, and that he himself was involved in those activities.
Abrams was found sitting in the living room next to a table on which there was a scale, calibrated in grams and typical of the type used by drug dealers. Within several feet were numerous loaded guns; on the table in front of him, a .38 caliber Smith & Wesson revolver; across the room, a sawed-off shotgun; and, in his possession, a Derringer pistol. Abrams admits ownership and possession of the Derringer, and this possession under the circumstances presented here provides circumstantial evidence of his involvement in a drug crime. Weapons are tools of the trade, insofar as drug distribution is concerned, and are kept on the premises from which distribution occurs, just like other drug paraphernalia.
There were plastic bags near Abrams feet, of the same type that contained the drugs thrown on the kitchen floor. More than 20 pieces of crack cocaine and a razor blade were found in the drawer of the coffee table next to where Abrams was sitting. Unlike the crack in the drawer, the crack in the kitchen was in large chunks. At trial, an expert testified that the amount of cocaine in the apartment, more than 41 grams, was more than is usual for personal use. When Abrams arose from the couch, money, totalling $455 in small bills fell to the floor, further circumstantial evidence of involvement in drug transactions. Finally, Officer Castle testified that six days before the search warrant was executed he went to the front door of the residence in an undercover capacity and the following dialogue took place:
I knocked at the door. Mr. Abrams answered the door. I asked for June, which is a nickname for Mr. Greene. He stated he wasn't there. I asked for a half. He stated he did not have any. I asked him if he could help me out, that I used to cop from them...
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