U.S. v. Cooke

• Decision Date: 09 April 1997
• Docket Number: No. 96-1852,96-1852
• Citation: 110 F.3d 1288
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice COOKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1288

110 F.3d 1288

UNITED STATES of America, Plaintiff-Appellee, v. Maurice COOKE, Defendant-Appellant.

No. 96-1852.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 29, 1996.

Decided April 9, 1997.

Victoria Ursulskis (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Kirk J. Kavanaugh (argued), Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Defendant-Appellant.

Before CUMMINGS, COFFEY and DIANE P. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

A jury convicted Maurice Cooke for attempted possession of piperidine with intent to manufacture phencyclidine, 21 U.S.C. §§ 841(d)(1) and 846, as well as using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). In this appeal, Cooke does not challenge his attempted possession conviction; however, he does contend that the evidence was insufficient to support a conviction for using and carrying a firearm in relation to a drug crime and that the "using and carrying" jury instruction given by the district court was erroneous. We reverse Cooke's § 924(c)(1) conviction and remand for a new trial on that charge.

I. BACKGROUND

While employed as a Youth Manager at the Marion County Juvenile Center in Indianapolis, Larry Whitley met Michael Spicer, who was incarcerated at the Center. Whitley recruited Spicer to burglarize a local chemical company and steal a fifty-five-gallon drum of piperidine, a list I chemical ¹ used in the process of manufacturing phencyclidine (known on the streets as PCP or "angel dust")--a Schedule III controlled substance. ² In February 1995, Spicer succeeded in burglarizing the Riley Chemical company and obtained a drum of piperidine, which he delivered to Whitley. Whitley testified that he transferred the contents of the fifty-five-gallon drum into five-gallon containers and that Cooke flew to Indianapolis from California on two separate occasions to take delivery of the piperidine--taking approximately twenty-five gallons each time. Whitley personally delivered the first installment to Cooke at the Indianapolis airport; Whitley's son delivered the second installment to Cooke at the airport about a month later. Cooke had previously sent between $8,000 and $9,000 to Whitley by Federal Express as payment in advance.

After both of these deliveries, Cooke contacted Whitley and complained about the quality of the piperidine. Therefore, Whitley again recruited Spicer to burglarize Riley Chemical and instructed him to get regular piperidine this time rather than methyl piperidine. Spicer agreed. However, unbeknownst to Whitley, Spicer had now admitted to the Indianapolis police that he committed the Riley Chemical burglary at Whitley's behest, and was now cooperating with the police in connection with their continued investigation. Working with Spicer, the police arranged to make a controlled delivery of piperidine to Whitley (referred to in the record as a "reverse-sting" operation). In late May 1995, Spicer notified Whitley that he had obtained the piperidine. Whitley, in turn, notified Cooke, who told Whitley that he would get back to him with details regarding when he would arrive in Indianapolis. Cooke subsequently informed Whitley that he would arrive at the Indianapolis airport at 4:00 p.m. on June 1.

Whitley was unable to make the 4:00 o'clock connection with Cooke because he was arrested at his home earlier that day for his attempted possession of piperidine. Whitley now began to cooperate with the police. He informed them that Cooke was in Indianapolis waiting to receive the piperidine. Working with the police, Whitley phoned Cooke at the hotel where he was believed to be staying. Cooke questioned Whitley about why he was not at the airport as planned and informed Whitley that he had spoken earlier to Whitley's wife, who was hysterical and thought that the police were outside. Whitley told a cover story to calm Cooke and arranged to meet with him at the hotel in thirty minutes. Because it took the police considerably longer to pull things together (such as coordinating law-enforcement efforts, wiring Whitley with a sound-recording device, obtaining a vehicle for use in the reverse sting, etc.), Whitley was late for this meeting and when he arrived at the hotel Cooke was gone. Accompanied by the police, Whitley drove to the airport where he found Cooke. The police parked an open-bed pickup truck in the airport parking lot for use in the operation. ³ A five-gallon container ostensibly filled with piperidine was placed in a cardboard box in the bed of the truck.

Whitley testified that when he found Cooke, the latter was "leery of the whole situation" because of what Whitley's wife had told him on the telephone; however, Whitley reiterated his cover story and assuaged Cooke's reservations. Cooke then rented a vehicle so that he could drive the piperidine back to California. Cooke and Whitley decided that they would load up the vehicle either that night or the next morning. Whitley informed Cooke that he had a five-gallon can of piperidine in his truck to assure him that it was "the right stuff." Noting that he could not tell anything by looking at it, Cooke declined Whitley's invitation to examine the container. Whitley offered to give Cooke a ride to the rent-a-car parking area so that he could pick up his rented vehicle. When they arrived at the truck, Whitley pointed out the five-gallon container. Cooke asked where the rest of it was and Whitley said he had it stored somewhere. Whitley testified that "we put his bag in the back of the truck, and he got in the one side and I got in the driver's side." At that point, Cooke was arrested and Whitley was taken back into custody. A search of Cooke's luggage, a garment bag which was recovered from the bed of the truck, revealed an unloaded .38 caliber semiautomatic handgun, a fully loaded clip, and a plastic bottle containing thirteen rounds of ammunition. The gun and ammunition were found in a small compartment inside the garment bag.

Cooke was charged and convicted by a jury of attempted possession of piperidine with intent to manufacture phencyclidine, 21 U.S.C. §§ 841(d)(1) and 846, as well as using and carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). He was sentenced to 180 months' imprisonment (120 months on Count 1 and 60 months consecutive on Count 2) and a term of supervised release of three years. On appeal, Cooke contends that the evidence was insufficient to support his conviction on the firearm count and that the district court's jury instructions as to that count were erroneous.

II. DISCUSSION

With respect to the firearms count, the district court instructed the jury as follows:

To sustain the charge of carrying or using a firearm during and in relation to a drug trafficking crime, the government must prove each of the following propositions: (1) that the defendant used or carried a firearm; and (2) that this use or carrying was during and in relation to a drug trafficking offense....

In order to demonstrate that the defendant carried or used the firearm referred to in Count 2 of the indictment, the government is not required to show that a defendant actually carried the firearm on his person during the commission of a controlled substances felony. The phrase "use or carry" is broader than physical possession. It is sufficient if you find that at a given time the defendant had the ability and intent to control the firearm and the circumstances of the case show that the firearm facilitated or had a role in the crime being committed. Having a gun accessible during a drug transaction is sufficient to meet the "use or carry" requirements of 18 U.S.C. § 924(c).

The fact that defendant never had an opportunity to brandish or discharge a gun does not mean that the gun was not used for purposes of the term "use" in Count 2 of the indictment. It is enough that the firearm facilitated or had a role in the crime such that its presence increased the likelihood of success of the drug offense as a means of protection or intimidation, whether or not a discharge in fact occurred, or if its presence provided the defendant with the security and confidence needed to undertake the alleged drug offense.

Jury Instructions 20, 22, 23.

Citing the Supreme Court's decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), Cooke contends that the foregoing instructions are erroneous and require reversal of his conviction. In Bailey, the Supreme Court held that mere possession of a firearm during a drug trafficking crime does not constitute "use" of the firearm, even if the possession served to facilitate the drug crime by emboldening the defendant's criminal conduct; rather, "use" requires "an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." --- U.S. at ----, 116 S.Ct. at 505. Although Cooke objected to instruction 22, he did so on grounds other than those asserted here. Accordingly, we review for plain error. ⁴ See United States v. Benitez, 92 F.3d 528, 533 & n. 4 (7th Cir.1996) (reviewing instruction for plain error where defendant offered her own instruction but objected only generally to the given instruction); United States v. Roth, 860 F.2d 1382, 1390 (7th Cir.1988) (noting that "[a]n objection that does not point out the problem in the instruction is insufficient because it does not give fair prospect of timely correction"), certiorari denied, 490 U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d 661.

There can be little doubt that the instructions given in Cooke's trial were plainly erroneous in light of Bailey, ⁵ and the government acknowledges as much. See Appellee's Br. at 10 ("the jury received instructions that were erroneous for a 'use' conviction"). The instructions conflated the terms "use" and "carry," treating them as...