U.S. v. Cox
| Decision Date | 19 March 2003 |
| Docket Number | Docket No. 01-1299.,Docket No. 01-1501. |
| Citation | 324 F.3d 77 |
| Parties | UNITED STATES of America, Appellee, v. Jason COX (a/k/a "JC") and Clinton Cox, Defendants-Appellants, Willie Grant, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
Mark Diamond, New York, NY, for Defendant-Appellant Jason Cox.
Barry M. Fallick, Rochman Platzer Fallick & Sternheim, LLP, New York, NY, for Defendant-Appellant Clinton Cox.
James J. Finnerty, Assistant United States Attorney for the District of Connecticut, Bridgeport, CT (John A. Danaher III, United States Attorney, and Jeffrey A. Meyer, Assistant United States Attorney, on the brief), for Appellee.
Before: VAN GRAAFEILAND, CARDAMONE, JACOBS, Circuit Judges.
Defendants Jason and Clinton Cox challenge their convictions and sentences for numerous drug and gun crimes, following a jury trial in the United States District Court for the District of Connecticut (Nevas, J.). This opinion considers (a) Jason Cox's argument that his acceptance of a gun as collateral for the purchase price of drugs did not constitute "use" of the gun under 18 U.S.C. § 924(c)(1), and (b) the argument by both defendants that the district court mishandled an allegation of juror misconduct. The defendants' remaining claims are considered and rejected in a summary order issued concurrently with this opinion. In sum, we affirm the judgments of conviction and sentences.
Brothers Jason and Clinton Cox began selling crack cocaine in and around Bridgeport, Connecticut in 1995. By 1999, they were dealing throughout the Bridgeport area and as far away as South Carolina. Other individuals, often crack addicts, were recruited to help them purchase cocaine and guns, process cocaine into crack, rent and drive cars, and make sales. Their employees included Willie Grant, Thomas Marazita, and Robert Davis.
On several occasions in the period April to June 1998, undercover Connecticut police officers paged Jason Cox to arrange delivery of crack. Several of these transactions were recorded on audio and videotapes. On February 9, 2000, Thomas Marazita bought $50 worth of crack from Jason Cox in a controlled purchase. The police also recorded a February 10, 2000 phone conversation in which Jason Cox told Marazita to purchase crack from Grant and discussed guns with him.
On April 4, 2000, a federal grand jury in Connecticut indicted Willie Grant and the Cox brothers on various drug and gun charges. After Grant pleaded guilty, the grand jury returned a superseding indictment charging Jason and Clinton Cox with twenty counts of drug and gun offenses under 21 U.S.C. §§ 846 & 841 and 18 U.S.C. §§ 922 & 924. The district court granted a motion by the government to sever and ultimately dismiss felon-in-possession counts brought under 18 U.S.C. § 922(g)(1), and a motion by the government to dismiss one count of possession with intent to distribute.
At a jury trial on the remaining counts, conducted January 16 through January 23, 2001, the government offered, among other things, the testimony of (i) Grant, Marazita, and Davis, all of whom had pleaded guilty and testified pursuant to cooperation agreements; (ii) undercover officers who purchased crack from Jason Cox in 1998 and 2000; and (iii) officers who recovered 397 grams of crack from a rental car in which the Coxes were passengers. The jury convicted on all counts.
Post-verdict, Jason Cox challenged the sufficiency of evidence as to one count of possession with intent to distribute and one count of using a firearm. In an unpublished order, the district court ruled that "the government's evidence that the offense charged in count 13 occurred in the summer of 1998 does not amount to an improper material variance from the `on or about June 20, 1998' date charged in the superseding indictment." (Ruling on Motion for Judgment of Acquittal, dated May 14, 2001, at 5.)
On May 17, 2001, Jason Cox was sentenced to 420 months in prison, ten years of supervised release, and a $900 special assessment. On September 12, 2001, Clinton Cox was sentenced to 540 months in prison, ten years of supervised release, and a $700 special assessment. Defendants filed timely notices of appeal.
The Coxes challenge their convictions and sentences on numerous grounds, none of which warrants reversal or vacatur. While we reject most of their claims in a summary order filed today, two of their claims raise issues that merit discussion in this published opinion.
Count Fourteen of the superseding indictment against Jason Cox alleged that, "[o]n or about June 20, 1998 ... [he] did knowingly use and carry a firearm ... during and in relation to a drug trafficking crime ... in violation of [18 U.S.C. § 924(c)(1)]." (Superseding Indictment, dated Aug. 2, 2000, at 5-6.) In a pro se brief submitted with the Court's permission, Cox argues that his taking of a gun as collateral for the purchase price of drugs did not constitute "use" or "carrying" of a gun within the prohibition of 18 U.S.C. § 924(c)(1). We disagree.
A. Relevant Facts
The evidence at trial demonstrated that Jason Cox accepted a gun from Thomas Marazita as collateral for the purchase price of drugs on or about June 20, 1998.1 On direct examination, Marazita testified as follows:
Q. Did Jason Cox ever ask you to obtain a gun for him?
A. Yes.
Q. And when, approximately?
A. Sometime in '97, '98.
Q. And what type of gun? Did you ever give him a gun?
A. Yes, I did.
Q. What type of gun?
A. A .357 magnum.
Q. Do you recall when you gave him that gun?
A. Sometime in the summer of '98.
Q. Did you ever pawn that gun?
A. Yes, I did.
Q. And where did you pawn the gun?
A. I pawned it at Joe Davis Pawn Shop in Bridgeport.
Q. And did you repurchase the gun?
A. Yes, I did.
Q. And when you repurchased the gun from Joe Davis, did you have to fill out any forms?
A. The standard transaction, transaction record.
Q. I show you what's marked into evidence as Government's 26 and ask if you recognize that.
A. Yes, I do.
Q. Is that your signature on it?
A. Yes, it is.
Q. Does that reflect you re-pawned the gun?
A. Yes.
Q. And what type of gun did you re-pawn?
A. That's a Sturm Ruger speed-six. It's a revolver, .357 magnum.
Q. And when did you re-pawn it?
A. Well, I purchased it, I bought it back in June, June 19th of '98.
Q. When did you give it to Mr. Jason Cox; do you recall?
A. Sometime after that date.
Q. Did you ever pawn that gun again?
A. No.
Q. After you gave it to Mr. Jason Cox, did you ever see that gun again?
A. No.
Q. Did you receive anything in exchange for giving him that gun?
A. Yes.
Q. What did you receive?
A. Crack cocaine.
(Tr. of Jury Trial, dated Jan. 17, 2001, at 90-92.) On redirect, Marazita testified further:
Q. Do you recall the last time you bought the gun from Joe Davis?
A. Yes.
Q. When was that?
A. In July of '98.
Q. After you bought the gun from Joe Davis then, what did you do with it?
Q. In exchange for what?
A. For crack. Well, the dollar equivalent of crack.... I would contact Jason. I would say give me a dollar equivalent, give me 25 or 50 dollars worth of crack, I'll pay you tomorrow.... I was basically putting collateral up for the money that I owed him. So I would give him my gun. When I paid him the money I owed him for the drugs that I took, he would give me back the gun.
(Tr. of Jury Trial, dated Jan. 18, 2001, at 127-28.) To corroborate Marazita's account, the government introduced the pawn shop transaction records and the recording of a February 10, 2000 phone call in which Marazita asked Cox about the gun and Cox answered that he no longer had it.
The issue of whether Jason Cox "used" or "carried" the firearm within the meaning of 18 U.S.C. § 924(c)(1) was not raised at trial. Indeed, trial counsel for Jason Cox acquiesced in a jury instruction that "[a]n individual who exchanges a controlled substance for a firearm, uses the firearm during and in relation to a drug trafficking crime." (Tr. of Jury Instructions, at 56-57, 63.) The § 924(c)(1) argument has been raised for the first time in Jason Cox's pro se brief on appeal. "Generally, a party's failure to object to a jury instruction will preclude appellate review of the instruction." See Johnson v. New York Hosp., 96 F.3d 33, 34 (2d Cir.1996); see also Fed.R.Crim.P. 30.
We therefore consider only whether there has been plain error, i.e., (1) error (2) that is plain, (3) that affects substantial rights, and (4) that affects seriously the fairness, integrity, or public reputation of judicial proceedings. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Fed. R.Crim.P. 52(b).
Finding no error in the conviction under 18 U.S.C. § 924(c)(1), we need go no further than the first step of plain error analysis. At the time of the offense charged in the superseding indictment — "on or about June 20, 1998" — Section 924(c)(1) provided in pertinent part as follows:
Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....
18 U.S.C. § 924(c)(1) (1996) (amended 1998). The government therefore had to prove that Jason Cox (1) used or carried a firearm, (2) did so knowingly, and (3) did so during and in relation to a drug trafficking offense. See United States v. Desena, 287 F.3d 170, 180 (2d Cir.2002). The third element is satisfied by Cox's conviction on Count 13 of the superseding indictment for possession with intent...
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