U.S. v. Canady

Decision Date24 September 1997
Docket NumberNo. 2003,D,2003
Citation126 F.3d 352
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marcus CANADY, Defendant-Appellant. ocket 96-2402.
CourtU.S. Court of Appeals — Second Circuit

Edward S. Zas, Henriette D. Hoffman, Legal Aid Society, Federal Defender Division, New York City, for Defendant-Appellant.

Christopher V. Taffe, Assistant United States Attorney, Western District of New York, Rochester, NY (Patrick H. NeMoyer, United States Attorney, Western District of New York, Rochester, NY), for Plaintiff-Appellee.

Before: WALKER, McLAUGHLIN and PARKER, Circuit Judges.

JOHN M. WALKER, Jr., Circuit Judge:

Marcus Canady appeals from an order of the United States District Court for the Western District of New York (David G. Larimer, District Judge ) that denied his 28 U.S.C. § 2255 motion to vacate his conviction. On appeal, Canady raises two challenges to his conviction: (1) the evidence was insufficient to sustain Canady's conviction on the firearm count; and (2) at the conclusion of the non-jury trial, the district court's failure to announce its verdict in open court violated Canady's right to be present at all stages of trial in violation of Fed.R.Crim.P. 43(a) and the Fifth and Sixth Amendments.

We affirm in part, reverse in part, and vacate and remand for proceedings not inconsistent with this opinion.

BACKGROUND

At 8:52 a.m. on March 27, 1993, Rochester Police Officer Joseph McClaney was dispatched to investigate a burglary call. When he arrived at the designated address in Rochester, New York, the officer recognized one of the two men sitting on the porch as Marcus Canady, whom he had known for about six years, but was unable to identify the other man.

As Officer McClaney approached, Canady explained that he was renovating the house for his uncle. Canady invited Officer McClaney inside and the two entered the house.

There were only two items of furniture in the entire house, a loveseat and a television set--both in the living room. A jacket lay on the right cushion of the loveseat, and the television was on. Officer McClaney saw no signs of renovation activity and noticed no tools.

Once the two were inside, Canady told the officer that he was going to call his uncle who would verify his purpose for being at the house and asked the officer to wait in the living room. Officer McClaney was soon joined by two other officers in the living room, waiting for Canady to return.

After a few minutes, Canady rejoined them, stating that his uncle was on his way. Canady sat on the left cushion of the loveseat about five feet away from where Officer McClaney was standing. Shortly thereafter, Canady repositioned himself on the loveseat's As a diversion, Officer McClaney asked Canady whether the jacket on the right cushion of the loveseat was his. As Canady looked over to the jacket, Officer McClaney grabbed the gun from underneath the left cushion. Canady then stood and Officer McClaney noticed a second gun beneath the left cushion. Both guns were accessible to someone seated on the loveseat simply by reaching down between the cushion and the arm of the loveseat. Canady was then arrested.

left arm, and when he did, Officer McClaney noticed the barrel of a gun underneath the left cushion, pointed in his direction. Canady's left leg was inches away from the gun.

A search following Canady's arrest revealed a plastic bag containing nine smaller bags of cocaine, later determined to weigh 59.75 grams, wedged between the loveseat's right cushion and right arm. No identifiable fingerprints were found on the package, but a latent fingerprint lifted from one of the guns matched Canady's. Some rubberbands and a pager were also found at the foot of the loveseat. During the forty-five minutes that Officer McClaney was at the residence, Canady's uncle never arrived.

While in custody, Canady was interviewed by Rochester Police Investigator Dale Feor. Officer Feor asked Canady whether the guns and drugs found in the residence belonged to Canady. At first, Canady denied ownership, but after Officer Feor told Canady that one of his fingerprints had been matched to a latent fingerprint lifted from one of the guns, Canady admitted ownership of that gun. Canady continued to deny that he owned the other gun and the cocaine. Canady also stated that the house belonged to his aunt, and a key to the residence was found in his possession.

An indictment was subsequently returned, charging Canady with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) ("Count One") and one count of using and carrying a firearm during and in relation to a narcotics crime in violation of 18 U.S.C. § 924(c) ("Count Two"). On January 24, 1994, Canady waived his right to a jury trial and, that same day, a bench trial commenced and concluded before Judge Larimer. The district court did not reconvene to announce its decision; and instead, on February 2, 1994, it mailed its decision and order convicting Canady on both counts to the parties. Canady first learned that he had been convicted two weeks later by reading a newspaper.

On May 5, 1994, the district court sentenced Canady to 41 months of imprisonment on Count One and 60 months of imprisonment on Count Two to be served consecutively, and to five years supervised release on Count One and two years supervised release on Count Two to be served concurrently. Canady did not object at sentencing to the court's failure to render its decision on guilt pursuant to Fed.R.Crim.P. 23(c) in open court.

On direct appeal, Canady's lawyer filed a brief challenging the conviction on the basis that the evidence was insufficient to establish that Canady constructively possessed the cocaine and the firearm. Canady moved for leave to file a supplemental brief pro se. In his motion papers, Canady indicated his desire to raise, on direct appeal, two additional challenges to his conviction: (1) that the district court erred by failing to announce the verdict in open court and (2) that the evidence did not show that Canady "used the firearm to facilitate" the narcotics offense. Because Canady was represented by counsel at the time, the Clerk's Office for the Second Circuit forwarded Canady's motion to his lawyer along with a letter asking the lawyer to reply to Canady's motion. Canady contends that his lawyer promised to raise the two additional issues on direct appeal; the lawyer failed to respond to this court's letter and did not argue the additional grounds urged by Canady. On February 15, 1995, a panel of this court affirmed the conviction, finding sufficient evidence to sustain Canady's conviction on both counts.

On October 2, 1995, Canady filed a 28 U.S.C. § 2255 motion pro se to vacate his conviction on the two grounds he had tried to raise on direct appeal in his pro se motion, and on the further ground that his counsel had been ineffective. Despite Canady's counsel's failure to raise the first two challenges

                on direct appeal, or to object at sentencing to the court's mailing of its Rule 23(c) findings, the government did not assert a defense of procedural default in the district court.  On December 5, 1995, the Supreme Court decided Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995) which held that a conviction for violating the "use" prong of 18 U.S.C. § 924(c) can be sustained only if the evidence shows that the weapon was "active[ly] employ[ed]."  On March 19, 1996, the district court denied Canady's § 2255 motion.  United States v. Canady, 920 F.Supp. 402, 408 (W.D.N.Y.1996).  The district court concluded that (1) although his conviction could not be sustained under the "use" prong of § 924(c), the evidence established that Canady had "carried" the firearm during and in relation to a drug offense, id. at 406-07;  and (2) under Fed.R.Crim.P. 43(a), Canady had no right to have his verdict announced in open court, id. at 404, and that the defendant's presence would have been useless, id. at 404-05.   The district court also held that since the two grounds that counsel failed to raise lacked merit, there was no prejudice from counsel's conduct within the meaning of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and therefore the ineffective assistance claim must fail as well.  920 F.Supp. at 408.  This appeal followed
                

DISCUSSION

I. 18 U.S.C. § 924(c)

Canady was convicted for violation of 18 U.S.C. § 924(c) which, in relevant part, imposes a five year prison term on a person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." In order to convict under § 924(c), the government must show first, that the defendant used or carried a firearm and second, that the use or carrying was in relation to a drug trafficking crime. See Smith v. United States, 508 U.S. 223, 227-28, 113 S.Ct. 2050, 2053-54, 124 L.Ed.2d 138 (1993). On his collateral appeal, Canady claims that the evidence was insufficient to convict him of the firearms count. We disagree.

"In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden." United States v. Giraldo, 80 F.3d 667, 673 (2d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996). In reviewing such a challenge, we "review evidence presented at trial in the light most favorable to the government." United States v. Baker, 78 F.3d 1241, 1245 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1720, 137 L.Ed.2d 842 (1997); see United States v. Pimentel, 83 F.3d 55, 57 (2d Cir.1996). We draw all inferences and resolve all issues of credibility in the government's favor. See, e.g., United States v. Weiss, 930 F.2d 185, 191 (2d Cir.1991). We review the pieces of evidence as a whole, "not in isolation," United States v. Podlog, 35 F.3d 699, 705 (2d Cir.1994), cert. denied, 513 U.S. 1135, 115 S.Ct. 954, 130...

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