U.S. v. Evans, s. 88-3126

• Decision Date: 03 November 1989
• Docket Number: Nos. 88-3126,88-3127 and 88-3157,s. 88-3126
• Citation: 888 F.2d 891
• Parties: UNITED STATES of America v. Jerome S. EVANS, Appellant. UNITED STATES of America v. Tyrone CURREN, a/k/a Edward Tyson, Appellant. UNITED STATES of America v. Kerry WEBBER, a/k/a David Richardson, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 891

888 F.2d 891

281 U.S.App.D.C. 194

UNITED STATES of America v. Jerome S. EVANS, Appellant.

UNITED STATES of America v. Tyrone CURREN, a/k/a Edward Tyson, Appellant.

UNITED STATES of America v. Kerry WEBBER, a/k/a David Richardson, Appellant.

Nos. 88-3126, 88-3127 and 88-3157.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 28, 1989.

Decided Nov. 3, 1989.

G. Godwin Oyewole, Alexandria, Va. (appointed by this Court) for appellant, Jerome S. Evans in No. 88-3126.

Mona Asiner, Alexandria, Va. (appointed by this Court) for appellant, Tyrone Curren in No. 88-3127.

Anthony C. Vance, Washington, D.C. (appointed by this Court) for appellant, Kerry Webber in No. 88-3157.

Rachel Adelman-Pierson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Helen M. Bollwerk, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before WALD, Chief Judge; BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

These appeals arise from judgments of conviction of Jerome Evans, Tyrone Curren, and Kerry Webber (collectively "appellants") of possession with intent to distribute more than 50 grams of a cocaine mixture, 21 U.S.C. Secs. 841(a) and 841(b)(1)(A)(iii); using or carrying a firearm in connection with a drug-trafficking offense, 18 U.S.C. Sec. 924(c)(1); and three counts of possessing an unregistered firearm, D.C.Code Sec. 6-2311(a).

Evans challenges the sufficiency of the evidence against him on all counts and contends that the District Court improperly admitted the testimony of a threatened witness without holding a hearing to determine whether the threat affected her mental attitude and influenced her testimony. Curren argues that the trial court erroneously instructed the jury on the elements of using or carrying a firearm in relation to a drug-trafficking offense, 18 U.S.C. Sec. 924(c)(1), and challenges the sufficiency of the evidence against him on all counts. Webber challenges the sufficiency of the evidence to support his convictions for possession with intent to distribute drugs and for possession of unregistered firearms. With respect to the possession of unregistered firearms counts, Webber contends that his real name is David Richardson, so that the government's evidence that the firearms were not registered to Kerry Webber is insufficient to show that the guns were not, in fact, registered. Webber also contends that a mistrial or dismissal is warranted because of the prosecution's failure to produce relevant evidence in a timely manner.

We affirm the convictions of all defendants on all counts.

I. BACKGROUND

The government's principal witness was Raoul Civil. Civil testified that on March 5, 1988, Evans, Curren, and Webber picked up Civil at his New York apartment and took him to a Bronx apartment where Evans produced a paper bag filled with cocaine. After Civil was inept in "cutting" the drugs, Evans and Webber sought and found two women who could prepare the cocaine. These women spent several hours packaging a large quantity of "crack" cocaine while Evans instructed Civil on methods of selling drugs on the street.

Evans later accused Civil of stealing some of the drugs, pointed a gun at Civil's head, forced him to strip, and beat him with a belt. Curren and Webber, who had been sleeping, were awakened by Civil's screams, and Evans told them that Civil had stolen some of the drugs. Webber and Curren then pointed guns at Civil, while Webber and Evans discussed what to do with him. Fearing for his life, Civil agreed to go with the others to Washington, D.C. to sell narcotics.

On March 6, 1988, appellants and Civil concealed the cocaine and guns in a black knapsack with Evans' nickname "Sha" painted on it. The four took the knapsack and rode in a taxi to pick up another individual, Fenty. Appellants, Civil, and Fenty then rode to the bus station where Evans purchased tickets for all five to Washington, D.C. They left New York at approximately 6:00 p.m. and arrived in Washington sometime after 9:00 p.m.

When the group arrived in Washington, Evans led them to an apartment belonging to Brenda Taylor. At Taylor's, Evans removed a portion of the cocaine from the knapsack and told the others how to sell it. Webber, Curren, Fenty, and Civil then spent the entire day selling cocaine on Fourth Street, Southeast. Webber supervised the others, distributing to each only five bags of crack at a time and collecting the proceeds before dispensing additional drugs. Evans also appeared periodically to supervise the operation. The group returned to Taylor's apartment around 11:00 that night, after selling at least $2,000 worth of cocaine, and Webber turned the receipts over to Evans.

That night, in a dispute, Evans pointed a small black revolver at Civil, tied him up with a piece of telephone cord, and threatened to kill him. The next morning, when Civil stated that he wanted to return to New York, Evans beat Civil with a crutch while Webber and Curren prevented Civil from leaving.

Later, on the morning of March 7, 1988, Webber, Curren, Fenty, and Civil returned to Fourth Street to sell cocaine. Civil escaped to a fire station and contacted the police who quickly responded. Police officers arrested the appellants on Fourth Street; then, with Taylor's consent, they searched Taylor's apartment. In the room where Evans, Curren, and Webber had slept, the police found three guns, more than $2,000 in cash, some loose cocaine, and 345 grams of "crack" cocaine, worth approximately $56,000, individually packaged into 1,090 bags. At least one of the guns and most of the pre-packaged cocaine were found inside the black knapsack appellants had brought with them from New York.

At trial, Civil testified that he recognized all three guns from New York, and he specifically identified two of the guns as those used by Evans, Webber, and Curren. Brenda Taylor corroborated much of Civil's story and testified that Evans, Civil, and Curren had sold her some cocaine in her apartment. Finally, the government introduced evidence that none of the guns was registered to any of the defendants in the District of Columbia.

II. JURY INSTRUCTION ON USING OR CARRYING A FIREARM IN RELATION TO A DRUG-TRAFFICKING OFFENSE

18 U.S.C. Sec. 924(c)(1) provides:

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....

The District Court instructed the jury that in order to convict a given defendant on this count the jury must find beyond a reasonable doubt that, during and in relation to a drug-trafficking offense, defendant knowingly carried a firearm. The Court explained, "In order to satisfy this element, the government need not show that the defendant actually carried the firearm on his person. It is sufficient if you find that he transported or conveyed the weapon or had possession of it in the sense that it was accessible and within reach." (Tr. 1510). ¹ Curren contends that this instruction was erroneous because it permitted the jury to find that Curren carried a firearm if it found simply that a firearm was accessible and within reach; Curren argues that the jury may have found him guilty of this offense based solely on his sleeping in the same room as the knapsack.

Because Curren did not raise this objection at trial, his challenge is subject to "plain error" review under Fed.R.Crim.P. 52(b). See United States v. Wiggins, 530 F.2d 1018, 1020 (D.C.Cir.1976). Not only did Curren's trial counsel not object to the Court's statement that "carrying" could include possession in the sense that the weapon was "within reach," but he agreed that "carrying" means "within reach" in the sense of "within arm's reach" (Tr. 1182). ² Further, Curren's trial counsel did not object to the instruction concerning the meaning of "carry" when appellants were given an opportunity "to preserve whatever objections they may have made earlier for the record" (Tr. 1518) at the completion of the instructions.

Other circuits have recognized that "carry," as defined for the purposes of section 924(c)(1), need not be read in a "hypertechnical or narrow" way. See United States v. Raborn, 872 F.2d 589, 595 (5th Cir.1989) (the element of carrying "does not depend on proof that the defendant had actual possession of the weapon or used it in any affirmative manner, but it does require evidence that the firearm was available to provide protection to the defendant in connection with his engagement in drug trafficking" (footnote omitted)); ³ United States v. Cardenas, 864 F.2d 1528, 1535-36 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989) (though merely "transporting" is not "carrying," "carrying" can include "carrying in a vehicle," or "transporting while in possession"); United States v. Stewart, 779 F.2d 538, 539 (9th Cir.1985) (had the jury been properly instructed on the "during a felony" element of Sec. 924(c)(2) (1982) the defendant could have been convicted for carrying a firearm under this statute where a rifle was under his control in the trunk of his car); United States v. Barber, 594 F.2d 1242, 1244 (9th Cir.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979). A defendant may be convicted for "carrying" a weapon even if the weapon was not immediately on that defendant's person. Id. at 1244 ("carry" can include "transport" or "possess" in circumstances where the defendant has access to the gun). Thus, although "carrying" for section 924(c)(1) purposes may not be synonymous with "having constructive possession," it clearly comprehends more than actually physically wearing or bearing a gun on one's person.

In this case, there is no direct evidence that Curren actually bore a gun on his person while in D.C. However, the...