U.S. v. Frederick

• Decision Date: 05 May 2005
• Docket Number: No. 03-1895.,03-1895.
• Citation: 406 F.3d 754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jermaine Raynard FREDERICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

406 F.3d 754

UNITED STATES of America, Plaintiff-Appellee, v. Jermaine Raynard FREDERICK, Defendant-Appellant.

No. 03-1895.

United States Court of Appeals, Sixth Circuit.

Argued: August 3, 2004.

Decided and Filed: May 5, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

ARGUED:

Lawrence J. Phelan, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Lawrence J. Phelan, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: BOGGS, Chief Judge; DAUGHTREY, Circuit Judge; and WISEMAN, District Judge.^*

OPINION

BOGGS, Chief Judge.

Jermaine Frederick was convicted by a federal jury of being a felon in possession of a firearm, possessing marijuana with intent to distribute, and possessing a firearm in furtherance of a drug trafficking offense. He was sentenced to a total of 138 months of imprisonment. Mr. Frederick appeals from his conviction, asserting a variety of trial errors and challenging the sufficiency of the evidence. We conclude that Mr. Frederick's challenges to his conviction are without merit.

Frederick also argues that two enhancements to his sentence under the United States Sentencing Guidelines violated the Sixth Amendment, as interpreted in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In light of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and our recent holding in United States v. Barnett, 398 F.3d 516 (6th Cir.2005), we vacate Frederick's sentence and remand for resentencing.

I

The evidence at trial established the following. On October 31, 2002, Battle Creek, Michigan, police executed a raid on an apartment at 19 Battle Creek Avenue, where they had previously purchased drugs in a controlled buy. (The raid was pursuant to a search warrant, the validity of which is not in dispute.) The two bedrooms in the apartment were referred to in the subsequent trial as the north bedroom and the south bedroom. When the police entered, they saw Frederick emerging from the north bedroom. Officers ordered him to the ground and handcuffed him, along with several other people who were in the apartment at the time.

The police searched the apartment. In a closet in the north bedroom, they found a loaded Norinco MAK90 semi-automatic rifle bearing a drum magazine. Another loaded drum magazine was nearby, on a table. The officers also found in the north bedroom a scale and several plastic bags of various sizes, up to one gallon, that were later stipulated to contain marijuana. One bag of marijuana had Frederick's fingerprint on it. (The rifle did not bear Frederick's fingerprints.) Some of the marijuana bags were inside a wall safe that contained various documents with Frederick's name on them. The north bedroom also contained correspondence addressed to Frederick.

In the south bedroom, police found items bearing the name of Hashim Bell, apparently another resident of the apartment.

The police arrested Frederick and searched him. In his pockets they found keys that fit both the door on the apartment building and cars parked outside of the building. Frederick later stipulated that, at the time of his arrest, he was a felon who was not allowed to possess firearms. Frederick was indicted and charged with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g) (Count I); possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count II); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count III).

Frederick's trial began on February 10, 2003. The government supported its case on the two firearms-related counts with the testimony of seventeen-year-old Randy Turner. Turner testified that he had provided the MAK90 rifle to Frederick in exchange for $250 cash and a quantity of marijuana with a street value of $250. By way of explaining how he knew Frederick, and why Frederick came to possess the gun, Turner discussed Frederick's past drug activities. He testified that he worked for Frederick in packaging and selling crack cocaine, and packaging marijuana, for several months beginning in October 2000. Turner testified that he had visited the apartment at 19 Battle Creek Avenue in the past. Turner said that this was Frederick's residence, and the north bedroom was Frederick's bedroom. He testified that Hashim Bell, the resident of the other bedroom, dealt drugs along with Frederick.

Turner further testified that Frederick had trouble with some of his customers, who believed that he was "shorting" them by providing them with drugs of inferior quality or quantity. Moreover, Turner reported, Frederick had been robbed in the past by a man named Marco and had attempted to shoot Marco in retaliation.

Turner stated that he had personally supplied Frederick with a variety of handguns in the past. Turner then testified about the Norinco MAK90 rifle at issue in this case. He said that he acquired the gun in October 2002, and told Frederick that he had a "big gun" that he thought Frederick would be interested in. Turner testified that Frederick told him to bring the gun over, which Turner did. Frederick handled the gun and then negotiated a purchase price with Turner. Turner wanted $1000, but Frederick dickered him down to $250 in cash and a quantity of marijuana with a street value of $250, which Turner accepted. Frederick then took possession of the gun.

Over the defense's objection, the district court held that the foregoing testimony about Frederick's past drug activities with Turner did not violate the limitations on "other acts" evidence set out in Fed.R.Evid. 404(b).

Turner admitted on direct examination that he was under indictment for a number of drug charges in state court. On cross-examination, Turner further conceded that he was testifying in return for a benefit from the state prosecutor. The defense elicited testimony that Turner and Frederick had encountered each other in jail before the trial, and that Frederick had told Turner that he would subpoena Turner as a witness to say that Turner sold the gun to Bell.

One of the police witnesses called by the government, Battle Creek Detective Allan Betts, confirmed part of Turner's testimony. Detective Betts testified that he had interviewed Turner in the county jail on October 30, 2002—the day before the raid on the 19 Battle Creek Avenue apartment—and that Turner told him that he had recently sold a MAK90 rifle to Jermaine Frederick.

The defense presented the testimony of sixteen-year-old Ryan Aggers, an acquaintance of Turner and Frederick. Aggers testified that he had seen Turner with the MAK90 rifle, and had been present when Turner asked Frederick about buying the gun. He testified that Frederick said that he did not want to buy the gun and wanted nothing to do with it, and that he told Turner to get it out of his apartment. Aggers admitted under cross-examination that Turner had gotten him into trouble, and that he considered Turner a "fool" who was not his friend.

There was controversy over the jury instructions. The district court gave the following instruction concerning the "in furtherance of a drug trafficking crime" element of Count III, violation of 18 U.S.C. § 924(c):

In order for you to find that the defendant is guilty of possessing a firearm "in furtherance" of a drug trafficking crime, you must be able to conclude beyond a reasonable doubt that one reason for the defendant's possession of the firearm, not the only reason, but one reason was to somehow advance or further him in committing the drug trafficking crime set forth in Count II ....

You can consider several things about that. First, the type of drug activity that was being conducted. Second, the accessibility of the firearm, where was it in relation to drugs? Third, the type of firearm that was involved, we know the type because we have seen Exhibit 44 [the MAK90 rifle] and we have heard testimony about it. Fourth, whether the firearm was stolen, there has been some testimony about that. Fifth, whether it was illegal for the defendant to have a firearm. Well, we know that's true, because he agreed with that. It's illegal for him to have a gun. Six, whether the firearm was loaded or unloaded. We have heard testimony about that. Seventh, location of the gun in relation to the drugs or the drug proceeds, which would be money, of course. And the eighth, when the gun was found in relation to the drug activity that occurred, when it was found, you heard testimony about that and what happened on October 31st.

Those eight things are not exhaustive . . . . These things are intended to help you decide if the defendant's possession of . . . Exhibit 44 was in furtherance of a drug trafficking crime.

This instruction generally followed the written proposed jury instruction that the government had submitted, and the court had adopted, which was drawn from United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.2000), but it added commentary on the evidence the jury had heard. The court then instructed:

You may also find the defendant guilty of possessing the firearm in furtherance of a drug crime if you conclude beyond a reasonable doubt that he acquired the gun by trading drugs or drug proceeds for the gun. You have heard testimony about that.

The defendant objected to both of these "in furtherance" instructions. First, he argued that the district court's commentary on the evidence threatened to prejudice the jury, by essentially directing a verdict for the government on that element. The district court concluded that the objection had some merit and gave the following curative instruction as soon as the jury returned from a recess:

. . . I want to comment about [the] instruction which is on page 30 and . . ....