U.S. v. Bailey, 90-3119

Citation995 F.2d 1113
Decision Date08 October 1993
Docket NumberNo. 90-3119,90-3119
Parties, 62 USLW 2062 UNITED STATES of America v. Roland J. BAILEY, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (CR 89-00310-01).

James G. Duncan, with whom Roy T. Englert, Jr., Washington, DC (appointed by this court) were on the brief, for appellant.

Barbara K. Bracher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Elizabeth Trosman, and Odessa Vincent, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before D.H. GINSBURG, SENTELLE, and RANDOLPH, Circuit Judges.

D.H. GINSBURG, * Circuit Judge:

Roland J. Bailey appeals his conviction for (1) possession with intent to distribute five grams or more of cocaine in violation of 21 U.S.C. § 841(a); (2) using or carrying a firearm in connection with that drug trafficking offense in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). He alleges that the district court committed reversible error by refusing to instruct the jury on simple possession as a lesser included offense of possession with intent to distribute cocaine; that there was insufficient evidence of his having "used" a gun to convict him under 18 U.S.C. § 924(c); and that the 16-month delay between his arrest and indictment violated his right to a speedy trial pursuant to 18 U.S.C. § 3161(b). We affirm the convictions on all counts.

I. BACKGROUND

In May 1988 Officers Ronald T. Washington and Kevin Rice of the Metropolitan Police Department stopped Bailey's car after noticing that it had no front license plate and no inspection sticker. Officer Washington asked Bailey for his driver's license but Bailey instead handed him a District of Columbia identification card. Officer Washington then ordered Bailey to get out of his car. As Bailey exited the car, Officer Washington saw him push something between the seat and the front console. Upon searching the passenger compartment, Officer Washington found one round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine. After placing Bailey under arrest, Officer Rice searched the trunk and found there a loaded 9-mm. pistol and $3,216 in cash, mostly small bills.

Later that month Bailey was indicted in the Superior Court of the District of Columbia on D.C. drug and weapons charges. In September 1989 a superseding indictment was handed down in federal district court charging Bailey with the federal drug and weapon charges enumerated above.

At Bailey's trial Detective Charles DiDomenico, a narcotics expert, testified that the drugs found in the appellant's car were packaged for sale in $50 bags and that the quantity and packaging were "not consistent with personal use." He also stated that drug dealers frequently carry weapons "not only to protect themselves, but [also] to protect their assets, drugs and money." The jury found the appellant guilty as charged, and the district court sentenced him to concurrent prison terms of 51 months each on the first and third charges and sixty months on the second charge.

II. ANALYSIS

As indicated above, the appellant offers three grounds for appeal.

A. Instruction on Lesser Included Offense

First, the appellant argues that the district court erred in refusing to instruct the jury on simple possession of cocaine as a lesser-included offense of possession with intent to distribute cocaine. Not so.

The district judge is required to give a lesser-included offense instruction only when "a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater." Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 1451 n. 8, 103 L.Ed.2d 734 (1989); see also United States v. Thornton, 746 F.2d 39, 47 (D.C.Cir.1984) (lesser-included offense instruction is required "if there is any evidence fairly tending to bear upon the lesser included offense, 'however weak' that evidence may be") (quoting Belton v. United States, 382 F.2d 150, 155 (D.C.Cir.1967)). There must "be some rational basis for the lesser charge; otherwise it is merely a device for [a] defendant to invoke the mercy-dispensing prerogative of the jury." United States v. Sinclair, 444 F.2d 888, 890 (D.C.Cir.1971); see also Kelly v. United States, 370 F.2d 227, 229 (D.C.Cir.1966) ("An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such an instruction").

In this case there was no evidence from which a jury could rationally have concluded that Bailey possessed the cocaine without intending to distribute it. He was nabbed with the 30 grams of cocaine appropriately packaged for street distribution and with more than $3000 in small bills. According to the uncontradicted testimony of the Government's narcotics expert, possession of 27 packages each containing $50 worth of cocaine is inconsistent with merely personal use. See United States v. Beckham, 968 F.2d 47, 53 (D.C.Cir.1992) (upholding denial of instruction on lesser-included offense of simple possession where Government drug expert testified without rebuttal that stash was incompatible with personal use); accord United States v. Payne, 805 F.2d 1062, 1067 (D.C.Cir.1986) ("If the jury believed the Government's [expert testimony], the jury would have had no rational basis for returning a guilty verdict of simple possession").

As in Beckham, therefore, "No aspect of the government or defense cases--not even a combination of aspects of each--supports a simple possession theory." 968 F.2d at 52. Accordingly, we affirm Bailey's conviction for possession with intent to distribute.

B. Use of the Firearm

Section 924(c)(1) provides, in pertinent part:

Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years.

Bailey claims that there was insufficient evidence for the jury to find that he "use[d]" the 9-mm. gun found in his trunk "during and in relation to" a drug trafficking crime.

"As a jury has found [the appellant] guilty, we must consider the evidence in the light most favorable to the Government," United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992), and allow the Government "the benefit of all reasonable inferences that may be drawn from the evidence." United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). In determining the sufficiency of the evidence, we must affirm the appellant's conviction if "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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Derr, 990 F.2d 1330, 1336 (D.C.Cir.1993); United States v. Morris, 977 F.2d 617, 619 (D.C.Cir.1992); United States v. Long, 905 F.2d 1572, 1577 (D.C.Cir.1990); United States v. Poston, 902 F.2d 90, 94 (D.C.Cir.1990).

This court has fashioned a two-part test to determine whether a defendant "used" a firearm "during and in relation to" the drug trafficking crime he committed. See Derr, 990 F.2d at 1337; Jefferson, 974 F.2d at 205. First, there must be evidence of a "nexus ... between [the] particular drug offender and the firearm." Long, 905 F.2d at 1577 (emphasis added). This element can be, and usually is, satisfied by proof that the defendant actually or constructively possessed the gun. See Derr, 990 F.2d at 1337. Second, there must be evidence "that the guns facilitate[d] the predicate offense in some way." United States v. Harris, 959 F.2d 246, 261 (D.C.Cir.1992) (emphasis added); accord Derr, 990 F.2d at 1337. "Both elements must be proven to establish criminal liability under § 924(c)." Jefferson, 974 F.2d at 205.

Because the appellant concedes that he possessed the firearm, we need address only the question whether the Government has shown that the gun facilitated the appellant's commission of a drug trafficking offense. It is well-settled that "mere possession of a gun at the time that the crime is committed is not enough to establish use." United States v. Bruce, 939 F.2d 1053, 1054 (D.C.Cir.1991). On the other hand, the Government need not establish that the defendant brandished or discharged the weapon, see Morris, 977 F.2d at 621; Long, 905 F.2d at 1576; United States v. Evans, 888 F.2d 891, 896 (D.C.Cir.1989); United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.1992); United States v. Plummer, 964 F.2d 1251, 1255 (1st Cir.1992); United States v. Alvarado, 882 F.2d 645, 653 (2d Cir.1989); United States v. Meggett, 875 F.2d 24, 29 (2d Cir.1989); United States v. Raborn, 872 F.2d 589, 595 (5th Cir.1989); United States v. Tolliver, 937 F.2d 1183, 1190 (7th Cir.1991); United States v. Lyman, 892 F.2d 751, 753 (8th Cir.1989); United States v. Matra, 841 F.2d 837, 841-43 (9th Cir.1988); United States v. Mason, 658 F.2d 1263, 1270-71 (9th Cir.1981); United States v. Moore, 580 F.2d 360, 362 (9th Cir.1978), or even "that he was carrying the gun at the time of a specific transaction." United States v. Knox, 950 F.2d 516, 518 (8th Cir.1991).

Rather, in addition to showing possession (i.e. a nexus between the firearm and the offender), the Government need only "prove a connection between the firearm and an underlying drug offense," here possession with intent to distribute cocaine. Jefferson, 974 F.2d at 206; accord Castro-Lara, 970 F.2d at 983; United States v. Robertson, 706 F.2d 253, 256 (8th Cir.1983); United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985). More precisely, "the Government is...

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