U.S. v. Hall, 93-3183

• Decision Date: 30 March 1994
• Docket Number: No. 93-3183,93-3183
• Citation: 20 F.3d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gregory R. HALL, a/k/a Don Cusick, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1084

20 F.3d 1084

UNITED STATES of America, Plaintiff-Appellant, v. Gregory R. HALL, a/k/a Don Cusick, Defendant-Appellee.

No. 93-3183.

United States Court of Appeals, Tenth Circuit.

March 30, 1994.

David M. Lind (Randall K. Rathbun, U.S. Atty., Kim M. Fowler, Asst. U.S. Atty., on the brief), Asst. U.S. Atty., D. Kan., Wichita, KS, for plaintiff-appellant.

Daniel E. Monnat of Monnat & Spurrier, Wichita, KS, for defendant-appellee.

Before LOGAN, BRORBY, Circuit Judges, and SEAY, District Judge. ^*

SEAY, District Judge.

The government appeals the district court's pretrial dismissal of Count V of a third superseding indictment charging Gregory R. Hall, a/k/a Don Cusick, with having knowingly used or carried a Glock 17 semi-automatic pistol during and in relation to a drug trafficking offense, namely, a conspiracy to possess cocaine with intent to distribute, in violation of 18 U.S.C. Sec. 924(c)(1). In seeking the reversal of the district court's order and the reinstatement of Count V, the government argues the following: 1) the district court was without jurisdiction to grant a pretrial dismissal of Count V on the basis of insufficiency of the evidence, and 2) even assuming the court had jurisdiction, there was sufficient evidence to submit Count V to a jury. Appellate jurisdiction is properly invoked pursuant to 18 U.S.C. Sec. 3731. We affirm.

I.

On August 31, 1992, law enforcement officers assigned to monitor a Federal Express location in Los Angeles, California, observed a suspicious package addressed to a Don Cusick, 7635 W. 11th Street, Wichita, Kansas. After a narcotics detection dog confirmed the officers' suspicions by "alerting" to the package, agents of the Drug Enforcement Administration ("DEA") in Wichita were contacted and a federal search warrant was obtained to search the package upon its arrival in Wichita. The agents found approximately 1,500 grams of white powder inside the package. A field test was conducted and the powder tested positive for cocaine.

A controlled delivery to the Wichita address took place on September 1, 1992. This address was the residence of Hall and his wife, Paula Hall. At approximately 1:45 p.m. a DEA agent posing as a Federal Express employee delivered the package. The package was accepted by Paula Hall on behalf of the addressee, Don Cusick. Shortly thereafter, a federal search warrant for the residence was issued by a magistrate judge. DEA and local law enforcement agents returned to execute the search warrant at approximately 2:05 p.m. Paula Hall was arrested immediately. The agents conducted their search of the tri-level residence which consisted of a family room in the lower level; a living room, dining room and kitchen on the main floor; and two bedrooms and a bathroom in the upper level. The Federal Express package was found unopened on top of the refrigerator in the kitchen. The fully loaded Glock 17 semi-automatic pistol which is the subject of Count V was found on the top shelf in the closet of the upstairs master bedroom. ¹ Drug paraphernalia and residual cocaine powder were found on the main floor and garage, but were not found in the master bedroom. Cash was found in the master bedroom and the lower level: $300 in a purse on the dresser in the master bedroom; $1,310 in a dresser drawer in the master bedroom; and $12,000 in the music room in the lower level.

Hall was not present when the package was delivered or during the search of the residence. Hall was in flight from Los Angeles to Wichita, through Dallas-Fort Worth, Texas. When Hall arrived at his residence at approximately 6:30 p.m. he was arrested by DEA agents in the living room just a few feet from the front door.

The charge which is the subject of this appeal first appeared as Count V of the superseding indictment filed on October 21, 1992. In Count V, the government alleged:

[o]n or about September 1, 1992, in the District of Kansas, Gregory R. Hall, a/k/a Don Cusick, did use or carry a firearm, that is, a Glock 17 semiautomatic pistol ... in relation to a drug trafficking offense, namely the possession of cocaine with the intent to distribute ... in violation of 18 U.S.C. Sec. 924(c).

Hall filed a motion for a bill of particulars in relation to Count V and the government responded by stating that through discovery it had provided Hall with all the facts surrounding the offense. In reply, Hall moved the court to dismiss Count V on the basis that, as a matter of law, the government's evidence was insufficient to establish a Sec. 924(c)(1) violation. On December 28, 1992, the court conducted an evidentiary hearing on the motion to dismiss as well as several other motions, including a motion to suppress. Defense counsel presented evidence with respect to both the motion to dismiss and the motion to suppress. The government did not object to the presentation of evidence in relation to the motion to dismiss. In fact, the government consistently acknowledged throughout the proceedings concerning Hall's motion to dismiss that the facts surrounding Count V were not in dispute. Following the hearing, the government filed a second superseding indictment on January 12, 1993, which changed the predicate offense for Count V to conspiracy to attempt to possess cocaine with intent to distribute. Again, Hall moved to dismiss Count V. On February 22, 1993, the court granted Hall's motion. The court held that a submissible section 924(c)(1) case is not established where the facts only establish that a gun was found somewhere in the house. Thereafter, on March 24, 1993, the government filed a third superseding indictment changing the predicate offense for Count V to conspiracy to possess cocaine with intent to distribute. Once again, Hall moved to dismiss Count V. The court directed the government to file a bill of particulars with respect to Count V. The government's bill of particulars presented no new facts. On June 8, 1993, the court entered its order dismissing Count V of the third superseding indictment. The court incorporated its previous order of February 22, 1993, and reiterated its finding that "the present charge rests solely on the presence of the pistol somewhere in the defendant's house." It is from this June 8, 1993, order dismissing Count V of the third superseding indictment that the government appeals.

II.

On appeal, the government first contends that the trial court erred in dismissing Count V prior to trial. The government claims the court's dismissal of Count V based on the insufficiency of the evidence was an improper determination of Hall's innocence made before the issue was put to trial before the trier of fact. Simply stated, the government challenges the trial court's jurisdiction to dismiss Count V on a pretrial motion to dismiss.

Rule 12(b) of the Federal Rules of Criminal Procedure provides that "[a]ny defense, objection, or request which is capable of determination without trial of the general issue may be raised before trial by motion." In its disposition of a Rule 12(b) motion, the court is allowed to consider factual issues. In this respect, Rule 12(e) provides that "[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record." The government contends, however, that the trial court cannot make findings of fact on the "general issue" of the sufficiency of Count V. It is claimed that the procedure utilized by the trial court in making findings of fact in connection with the motion to dismiss is at odds with the standard for reviewing the sufficiency of an indictment.

An indictment is deemed constitutionally sufficient if it (1) contains the essential elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to defend against, and (3) enables the accused to plead an acquittal or conviction under the indictment as a bar to any subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir.1991). Generally, the strength or weakness of the government's case, or the sufficiency of the government's evidence to support a charge, may not be challenged by a pretrial motion. United States v. King, 581 F.2d 800, 802 (10th Cir.1978). An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962). Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency.

Notwithstanding these general principles, this circuit has upheld a pretrial dismissal under Rule 12(b) based on the insufficiency of the evidence where the underlying facts were essentially undisputed and the government failed to object to the district court's resort to evidence beyond the four corners of the indictment. In United States v. Brown, 925 F.2d 1301 (10th Cir.1991), we affirmed the district court's pretrial dismissal of three counts of violations of the National Stolen Property Act, 18 U.S.C. Secs. 2314 and 2315, on the basis that the allegedly stolen property, a computer program in source code form, was not covered under the statutory protection for goods, wares or merchandise. In dismissing the count, the district court did not rely solely on the allegations on the face of the indictment, but rather, it conducted an evidentiary hearing during which both the government and the defendant presented witnesses. The government also introduced one exhibit at the hearing. On appeal, we found no procedural error in the district court's handling of the motion to dismiss and we affirmed the dismissal. We determined that in circumstances like those before the district court, "it is permissible and may be desirable where the facts are essentially undisputed, for the district...