U.S. v. Brown

Decision Date28 September 1990
Docket NumberNo. 89-4129,89-4129
Citation915 F.2d 219
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry BROWN, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Gary D. Arbeznik, Asst. U.S. Atty., Mark A. McClain, Gregory C. Sasse, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Michael G. Dane (argued), Federal Public Defender, Cleveland, Ohio, for defendant-appellant.

Before MILBURN and GUY, Circuit Judges; and JORDAN, District Judge. *

MILBURN, Circuit Judge.

Defendant-appellant Larry Brown had a loaded revolver tucked into his waistband when he was arrested for attempting to sell cocaine to a passing motorist in Cleveland, Ohio. He was convicted of possession of cocaine with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1). He argues in this appeal that the district court's supplemental jury instructions, given in response to a jury question, erroneously relieved the government of the burden of proving beyond a reasonable doubt that he carried his pistol in relation to his possession with intent to distribute cocaine. For the reasons that follow, we affirm.

I.

On July 12, 1989, Cleveland Police detectives Michael Carosielli and Michael White, along with Sgt. Raymond Gercar, were patrolling an area of Cleveland known to have a high incidence of drug trafficking. As Sgt. Gercar drove their unmarked car on Case Court at approximately 5:40 p.m., he directed the detectives' attention to the defendant Brown, who was walking toward a Ford Escort that had stopped in the oncoming lane. They watched Brown approach the Escort from the sidewalk, remove something from a pocket, make a pouring motion into one of his hands, and show his hand to the female driver and lone occupant of the stopped car. Sgt. Gercar stopped the patrol car so close to the Escort that he could not open his driver's door. From that vantage point, the officers observed that Brown had what appeared to them to be nuggets or "rocks" of crack cocaine in his hand.

Detective Carosielli and Detective White got out of the car and Sgt. Gercar pulled it forward in order that he could get out. Detective Carosielli testified that Brown seemed to be "completely oblivious" to the presence of the officers as he and Detective White walked around the Escort and met on Brown's flanks. Brown was wearing a loose, lightweight jacket, and the officers could not tell if he was armed, so Detective Carosielli approached Brown with his service revolver drawn. He testified that he placed the revolver against Brown's shoulder and said, "police."

Brown immediately dumped the contents of his hands into the stopped car, straightened himself in a jerk, and moved his left hand toward his left hip. The detectives grabbed Brown's hands and pinned them to his back, and together they pinned Brown to the roof of the Escort. Detective White patted Brown's left hip and felt a large, firm bulge at the waist. He peeled back Brown's jacket and discovered a black vinyl carrying case tucked into the waist band of Brown's pants. Detective Carosielli handcuffed Brown, and Detective White removed the carrying case, opened it, and discovered that it contained a loaded .32 caliber revolver and thirty-two loose bullets.

Detective White then removed several rocks of crack cocaine from the lap and clothing of the female driver of the Escort, and ordered her out of the car. Upon searching the car, he discovered several more rocks. A total of fourteen rocks were seized in the arrest.

The driver, Shirley Linton, testified that she drove to Case Court to purchase crack cocaine for a friend, and that she stopped her car when she saw Brown. She testified that as he approached her, he opened a Tylenol bottle and poured out several rocks of crack cocaine into his hand. She further testified that when Brown finally noticed the officers, he dumped his rocks of cocaine into her lap.

Kyle Walton and Patrick Berarducci, agents with the United States Bureau of Alcohol, Tobacco, and Firearms, testified that they interrogated Brown the day after his arrest. The agents reduced Brown's admissions to a written statement, which he reviewed and then initialed with approval. The agents testified that Brown admitted he sold cocaine for a man he identified as Chop Chop. Brown admitted that he reaped between $4,000 and $5,000 per day selling cocaine, and that Chop Chop allowed him to retain $20 for every five rocks he sold. Brown further admitted that at this rate of compensation, he made approximately $500 per day in personal income by selling cocaine.

Brown admitted that he purchased the revolver, discovered by Detective White, a few days before he was arrested. He further admitted that he bought the gun to protect himself "from being ripped off from his money," as he lived in hotels and routinely carried $4,000 and $5,000 in cash per day.

On August 10, 1989, the grand jury named Brown in a two-count indictment that charged him with possession of cocaine with the intent to distribute and carrying a firearm during a drug trafficking crime. On September 6, 1989, the grand jury returned a superseding indictment that added the statutory language of charging Brown with carrying a firearm "during and in relation to a drug trafficking crime" (emphasis added). Brown was tried before a jury on October 4 and 5, 1989. The only contested issue of fact was whether he carried his pistol "in relation to" the underlying drug trafficking offense.

The district court instructed the jury that the offense of possessing cocaine with the intent to distribute was a crime involving specific intent. It instructed the jury that specific intent "means more than the general intent to commit the act. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids."

The district court instructed the jury as to the elements of 18 U.S.C. Sec. 924(c)(1) thusly:

First, that on or about the date alleged in the indictment the defendant carried a firearm.

Second, that the defendant had knowledge that he was carrying a firearm.

Third, that the defendant carried a firearm during and in relation to a drug trafficking crime; and

Fourth, that the defendant did so during the commission of a drug trafficking crime for which he may be prosecuted in a Court of the United States.

The district court then instructed the jury:

Should you find that the government has proved beyond a reasonable doubt that the defendant carried a firearm during the drug trafficking crime alleged in the first count of the indictment, you must then resolve the question of whether the government has also proved beyond a reasonable doubt that the firearm was carried in relation to that offense.

In order for the phrase "in relation to" to be satisfied, it must be proved that there existed a relationship between the firearm in question and the drug trafficking crime charged in the first count of the indictment.

Proof of the mere presence of the firearm is not sufficient in itself to constitute proof that the firearm was carried in relation to the drug trafficking crime charged in the first count of the indictment.

A firearm is used in relation to an offense if the firearm facilitates the commission of the offense or has a role in the offense, but not if the firearm plays no role. For example, if a firearm is carried in a pocket during the course of a pugilistic barroom fight and is never displayed or referred to, then that firearm was not carried in relation to the fight.

The "in relation to" element will be satisfied if you find from the circumstances or otherwise that the defendant intended to use the gun if a contingency arose or to make his escape.

Brown did not object to these instructions. The jury later received a copy of them to ponder during its deliberations. After deliberating for nearly a day, the jury sent the following question to the district court:

On page 12 [of the instructions], the last paragraph, "specific intent must be proved beyond a reasonable doubt ..."

Question: Must the government also prove specific intent to use the gun if a contingency arose, or just prove "intent to use the gun if a contingency arose...."

The district court discussed this question with defense counsel, the Assistant United States Attorney who prosecuted the trial, and another Assistant United States Attorney who happened to be in the courtroom. The district court then concluded:

I don't think carrying a weapon during and in relation to a drug offense is a specific intent crime. That's the problem I'm having even with the Government's position. I think the Congress would be absolutely amazed if we told them that they created a specific intent crime when they made the statute that gives rise to this offense. They wanted to stop drug dealers from carrying guns and having them available during drug offenses.

The defense counsel objected:

I respectfully disagree. They wanted to stop drug dealers from carrying guns, having them available in relation to drug offenses, not during the--not simply during, and that's the essence of what the jury is struggling with here it seems to me.

The district court then recalled the jury and gave it supplemental instructions, which provided in part:

Now, with respect to the second count of the indictment, please bear in mind that the government must prove beyond a reasonable doubt each of the elements of the crime of carrying a firearm and during and in relation to a drug trafficking trafficking offense.

Those elements are spelled out at the bottom of page 13 and the top of page 14 [of the jury instructions]. The question that you have submitted to me suggests that you are focusing on the part of the third element which reads: "That the defendant...

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