U.S. v. King, 93-8394

• Decision Date: 06 February 1996
• Docket Number: No. 93-8394,93-8394
• Citation: 73 F.3d 1564
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan KING and Bruce Rickard, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1564

73 F.3d 1564

UNITED STATES of America, Plaintiff-Appellee, v. Alan KING and Bruce Rickard, Defendants-Appellants.

No. 93-8394.

United States Court of Appeals Eleventh Circuit.

Feb. 6, 1996.

Suzanne Hashimi and Sheila Tyler, Federal Defender Program, Atlanta, GA, for Alan King.

Victoria D. Little, Decatur, GA, for Bruce Rickard.

Joe D. Whitley, United States Atty., Northern District of Georgia, Sandra Elizabeth Strippoli, and Amy Weil, Atlanta, GA, for Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior Circuit Judge.

CARNES, Circuit Judge:

Alan King and Bruce Rickard appeal their convictions and sentences stemming from the purchase of a kilogram of cocaine from an undercover police detective. Both defendants were convicted for attempting and conspiring to possess with intent to distribute cocaine, and for using or carrying a firearm in connection with a drug trafficking offense. For the reasons discussed below, we affirm both defendants' convictions and sentences for the attempt and conspiracy offenses, but we reverse their convictions and vacate their sentences for the firearm offenses.

I. BACKGROUND

Beginning in February 1992, Scott Gandy, an informant for the government, who was facing drug charges, attempted to arrange a drug transaction with Defendant King. Although Gandy and King had known each other for approximately twenty years, King twice declined to get involved in a drug transaction with Gandy, possibly because King was suspicious that Gandy was an informant. Eventually, King agreed to meet with Gandy's "friend," Detective Baxley of the Roswell Police Department, who was posing as a cocaine seller. On June 1, 1992, in Gandy's basement, King and Baxley met and discussed the terms of the proposed cocaine sale. King agreed to purchase a kilogram of cocaine from Baxley, and told him that if King's "money man" liked the cocaine King would purchase additional quantities. During the meeting, King placed a telephone call to his "money man," whom King referred to as "Bruce," and told the money man "[e]verything is a go" and to "[g]et your money together" or words to that effect. Later that evening, King paged Baxley and asked him to bring the cocaine over.

The next day, June 2, Baxley went to King's basement apartment to sell him the kilogram of cocaine. King let Baxley into his apartment, and Baxley asked to see the money. King went around the corner toward his bedroom, spoke with another male briefly and then reappeared with five stacks of currency. Baxley then retrieved a fake kilogram of cocaine from his car, and placed it inside a newspaper held by King. King took the fake cocaine, still wrapped in the newspaper, inside. Shortly thereafter, King was arrested. Defendant Rickard, the only other male in the house, was arrested "in the immediate vicinity" of King's bedroom, in which there was a triple beam scale on the dresser, a loaded .45 caliber handgun between the mattress and box spring of the bed, and the fake kilogram of cocaine in the closet. Rickard's fingerprint was on the fake kilogram of cocaine. Twenty-five thousand dollars was seized from the living room.

In August 1992, a grand jury indicted King and Rickard on three counts each. Count 1 charged each defendant with attempting to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 2 and 846. Count 2 charged each defendant with conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Count 3 charged each defendant with using or carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. Secs. 2 and 924(c).

At trial, both defendants made several motions for judgments of acquittal, all of which the district court denied. In January 1993, a jury convicted both King and Rickard on all three counts. King was sentenced to 123 months of incarceration, four years of supervised release, and a $150 special assessment. Rickard was sentenced to 168 months of incarceration, a $2,500 fine, four years of supervised release, and a $150 special assessment. Both King and Rickard appeal their convictions and sentences, each raising several issues.

II. DISCUSSION

A. THE Sec. 924(c) ISSUE

King and Rickard argue that the evidence was insufficient as a matter of law to sustain their convictions under 18 U.S.C. Sec. 924(c). Both defendants timely raised the issue at trial in several motions for judgments of acquittal on Count 3, all of which the district court denied. Since the trial, the Supreme Court has clarified the meaning of "uses" as that term is employed in Sec. 924(c). See Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

Section 924(c)(1) provides for a five-year minimum imprisonment for a person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." 18 U.S.C.A. Sec. 924(c)(1) (West 1995). In Bailey, the Supreme Court reversed two convictions under Sec. 924(c), holding that the evidence was insufficient to support either conviction under the "use" prong. --- U.S. at ----, 116 S.Ct. at 509. The Court held that "the language, context, and history of Sec. 924(c)(1) indicate that the Government must show active employment of the firearm" to establish "use." Id. at ----, 116 S.Ct. at 506. As applied to the two convictions in Bailey, the Court held that "a firearm inside a bag in the locked car trunk" and one "locked in a footlocker in a bedroom closet" did not constitute active employment. Id. at ----, 116 S.Ct. at 509. The Court in Bailey did not consider the "carry" prong of Sec. 924(c). Id.

Applying Bailey, we hold that a firearm found between a mattress and box spring in a bedroom next to the room where most of the drug trafficking crime occurred does not constitute the type of "active employment of the firearm" that is necessary for a conviction under the "use" prong of Sec. 924(c)(1). That is true even though the drugs being purchased (here, the fake drugs) ended up in the same room with the gun. Whatever the law in this circuit may have been prior to Bailey, it is now clear that the mere "conceal[ment] [of] a gun nearby to be at the ready for an imminent confrontation" absent the "disclos[ure] or mention[ ] by the offender" cannot form the basis for a conviction under the "use" prong of Sec. 924(c)(1). Id. at ----, 116 S.Ct. at 508. The government concedes the point in a post-Bailey supplemental authority letter.

The government also concedes that the Count 3 convictions cannot be upheld under the "carry" prong of the statute because, in its words, "the trial court did not instruct the jury on the 'carry' prong of 18 U.S.C. Sec. 924(c), and the government did not object to the Sec. 924(c) instruction." In light of that concession, we need not decide whether the evidence would have supported a conviction under the "carry" prong had that theory been presented to the jury. Accordingly, we reverse King's and Rickard's convictions under Count 3 of the indictment, and vacate the sentences imposed upon them pursuant to that count.

B. KING'S OTHER ISSUES

King argues that he was entrapped as a matter of law, and that the district court erred in submitting the entrapment issue to the jury instead of granting a judgment of acquittal on all three counts. King also argues that the district court's jury instruction on entrapment was inadequate because it did not specifically state that the government must prove predisposition beyond a reasonable doubt, and that the court should have given the additional entrapment instructions King requested, which would have done that. ¹

1. The Entrapment as a Matter of Law Issue

King moved for a judgment of acquittal on all three counts, arguing that he was entrapped as a matter of law. The district court denied his motion, and submitted the entrapment issue to the jury. King contends that the district court's refusal to grant his motion for judgment of acquittal was error under the Supreme Court's holding in Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992).

In Jacobson, the Supreme Court explained the government's burden of proof in an entrapment case: "Where the government has induced an individual to break the law and the defense of entrapment is at issue ... the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Id. at 548-49, 112 S.Ct. at 1540. In Jacobson itself, the Court held that "the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner." Id. at 550, 112 S.Ct. at 1541.

Applying Jacobson, in United States v. Brown, 43 F.3d 618 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 309, 133 L.Ed.2d 212 (1995), we observed that "[e]ntrapment is generally a jury question," and "[t]herefore, entrapment as a matter of law is a sufficiency of the evidence inquiry." Id. at 622 (citations omitted); see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) (holding that "the question of entrapment is generally one for the jury, rather than for the court"). Our inquiry is "whether the evidence was sufficient for a reasonable jury to conclude that the defendant was predisposed to take part in the illicit transaction." Brown, 43 F.3d at 622 (citing United States v. Aibejeris, 28 F.3d 97, 99 (11th Cir.1994)). Although our review of an entrapment defense is de novo, "we must view all facts and make all inferences in favor of the government." Id.

King's primary argument is that Jacobson requires the government to have evidence of predisposition before it begins its investigation of the defendant. This Court disposed of that contention in Aibejeris, where we ...