U.S. v. Knox, No. 90-5534

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore JOHN R. GIBSON, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN; LOKEN
PartiesUNITED STATES of America, Appellee, v. Michael Duane KNOX, Appellant.
Docket NumberNo. 90-5534
Decision Date22 November 1991

Page 516

950 F.2d 516
UNITED STATES of America, Appellee,
v.
Michael Duane KNOX, Appellant.
No. 90-5534.
United States Court of Appeals,
Eighth Circuit.
Submitted May 17, 1991.
Decided Nov. 22, 1991.

Page 517

Mark D. Nyvold, Minneapolis, Minn., argued, for appellant.

Andrew S. Dunne, Minneapolis, Minn., argued (Joe Dalager, on brief), for appellee.

Before JOHN R. GIBSON, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

Michael Duane Knox appeals his conviction on drug and weapons charges. He argues that he did not violate 18 U.S.C. § 924(c)(1) because he did not use his gun during a drug trafficking crime, and that the district court 1 erred in admitting illegally seized evidence, denying him adequate access to a law library, declining to sever two separate drug charges, and allowing the prosecution to make an improper closing argument. We affirm.

I.

On a cold night in February 1989, police officers patrolling a south Minneapolis alley came upon an empty car with its engine running. They followed footprints in the snow to a nearby apartment building, where they found a security door propped open. Before they could enter the building, Knox and a young woman came out.

Responding to the officers' inquiries, Knox stated that the car was his and that he had a license. During this brief questioning, Knox acted "very, very nervous" and was asked twice to remove his hands from his jacket pockets before he reluctantly did so. One of the officers then conducted a pat search, felt something resembling a knife in a jacket pocket, and reached inside where he found a loaded magazine for a .38-caliber pistol and a plastic bag containing what was later determined to be 7.5 grams of crack (cocaine base) and 8.9 grams of powdered cocaine. Knox was arrested. The officers asked him where the gun was, and he told them it was under the front seat of his car, where they retrieved it.

Less than seven months earlier, Knox had sold a small amount of crack cocaine to an undercover police officer. He was not arrested at that time, but after this arrest, he was indicted on three counts. The first, relating to the earlier incident, charged him with distributing less than a gram of cocaine base in violation of 21 U.S.C. § 841. The second and third, relating to the night of his arrest, charged him with possessing with intent to distribute more than five grams of cocaine base in violation of 21 U.S.C. § 841, and with using a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). He was not charged for possession of the powdered cocaine.

Prior to trial, Knox moved to suppress the items seized the night of his arrest. Following an evidentiary hearing, the motion was denied. At this point, Knox accused his family-retained attorney of lying and fired him. After a public defender was appointed to represent him, Knox accused her of collaborating with the prosecution and demanded her removal. The district court granted Knox's request that he represent himself but also appointed a third attorney, who served as standby counsel prior to and at trial and as counsel on this appeal.

Page 518

As trial approached, Knox complained that he did not have adequate access to a prison law library. Standby counsel sent him legal materials, which he threw away, and at one point the district court offered him use of the courthouse library, which he rejected. At the four-day trial Knox represented himself pro se, although he had access to and frequently used the services of standby counsel.

An issue at the trial was whether Knox intended to distribute the crack cocaine seized when he was arrested, the offense charged in Count Two, or whether he should be convicted of simple possession, a lesser included offense. Because a conviction under § 924(c) must be based upon a predicate drug trafficking crime, Knox requested an instruction that the jury must acquit him on Count Three if it only convicted him of the lesser included possession offense under Count Two. The district court refused that request but did instruct that the jury could not convict Knox on Count Three unless they also convicted him on Count Two. This issue rose to great significance when the jury found him guilty on all three counts, but only of the lesser included possession offense on Count Two. He was sentenced to 120 months in prison and three years of supervised release. This appeal followed.

II.

The § 924(c) conviction. Section 924(c)(1) substantially enhances the sentence of anyone who uses or carries a firearm "during and in relation to any ... drug trafficking crime." Knox contends that his § 924(c) conviction lacked a valid predicate crime because his Count Two conviction was for simple possession of cocaine base, not "drug trafficking." He also argues that he did not use the gun during his drug offense.

A § 924(c) conviction requires a predicate drug trafficking offense. Count Two charged Knox with possession of cocaine base with intent to distribute, which we held to be a drug trafficking crime in United States v. Matra, 841 F.2d 837 (8th Cir.1988). However, the jury only convicted Knox of the lesser included offense of simple possession. He argues that mere possession simply cannot be characterized as drug "trafficking."

Knox's argument is foreclosed by an amendment to § 924 in the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 6212, 102 Stat. 4181, 4360. Prior to that amendment, § 924(c)(2) had defined a "drug trafficking crime" as any Federal felony "involving the distribution, manufacture, or importation of any controlled substance." The 1988 amendment broadened the definition, so that "drug trafficking crime" now includes "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." Knox was convicted of possession of more than five grams of cocaine base. That is a felony punishable under the Controlled Substances Act. See 21 U.S.C. § 844(a). Therefore, the plain language of these statutes requires us to hold that Knox's § 924(c) conviction was properly predicated on a "drug trafficking crime." See Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981).

Knox also challenges his § 924(c) conviction on the ground that there was insufficient evidence that he used the gun "during and in relation to" his drug crime. In considering this claim, we review the evidence in the light most favorable to the verdict to determine whether there is substantial evidence to support the jury's verdict. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v....

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37 practice notes
  • United States v. Jungers, Nos. 12–1006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 7, 2013
    ...to include simple drug possession, which may encompass end users—the consumers. See18 U.S.C. § 924(c)(2); see also United States v. Knox, 950 F.2d 516, 518 (8th Cir.1991). The term “trafficking” does not inherently exempt purchasers. While the defendants are correct that § 1591 does not cri......
  • U.S. v. Bailey, No. 90-3119
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 8, 1993
    ...580 F.2d 360, 362 (9th Cir.1978), or even "that he was carrying the gun at the time of a specific transaction." United States v. Knox, 950 F.2d 516, 518 (8th Rather, in addition to showing possession (i.e. a nexus between the firearm and the offender), the Government need only "prove a conn......
  • U.S. v. Martinez, No. 164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 4, 1995
    ...exceeding one year"). Thus, possession of cocaine cannot be a predicate offense for purposes of section 924(c). Cf. United States v. Knox, 950 F.2d 516, 518 (8th Cir.1991) (holding that simple possession of more than five grams of crack (cocaine base), which carries a penalty of not less th......
  • US v. Menard, No. CR 95-4007
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 13, 1995
    ...once circumstances indicate a weapon may be present, is required by the interests of public and police safety. United States v. Knox, 950 F.2d 516, 519 (8th iii. Intrusiveness of a pat-down search. A pat-down search is recognized as a reasonable step to ensure the safety of the officers dur......
  • Request a trial to view additional results
37 cases
  • United States v. Jungers, Nos. 12–1006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 7, 2013
    ...to include simple drug possession, which may encompass end users—the consumers. See18 U.S.C. § 924(c)(2); see also United States v. Knox, 950 F.2d 516, 518 (8th Cir.1991). The term “trafficking” does not inherently exempt purchasers. While the defendants are correct that § 1591 does not cri......
  • U.S. v. Bailey, No. 90-3119
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 8, 1993
    ...580 F.2d 360, 362 (9th Cir.1978), or even "that he was carrying the gun at the time of a specific transaction." United States v. Knox, 950 F.2d 516, 518 (8th Rather, in addition to showing possession (i.e. a nexus between the firearm and the offender), the Government need only "prove a conn......
  • U.S. v. Martinez, No. 164
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 4, 1995
    ...exceeding one year"). Thus, possession of cocaine cannot be a predicate offense for purposes of section 924(c). Cf. United States v. Knox, 950 F.2d 516, 518 (8th Cir.1991) (holding that simple possession of more than five grams of crack (cocaine base), which carries a penalty of not less th......
  • US v. Menard, No. CR 95-4007
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • September 13, 1995
    ...once circumstances indicate a weapon may be present, is required by the interests of public and police safety. United States v. Knox, 950 F.2d 516, 519 (8th iii. Intrusiveness of a pat-down search. A pat-down search is recognized as a reasonable step to ensure the safety of the officers dur......
  • Request a trial to view additional results

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