U.S. v. Lyman, 89-5157

Citation892 F.2d 751
Decision Date22 February 1990
Docket NumberNo. 89-5157,89-5157
PartiesUNITED STATES of America, Appellee, v. Steven LYMAN, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Joseph S. Friedberg, Minneapolis, Minn., for appellant.

Lynn A. Zentner, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, BOWMAN and MAGILL, Circuit Judges.

LAY, Chief Judge.

Steven Charles Lyman was convicted of one count of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (1982), and one count of the knowing and unlawful use of a firearm "during and in relation to a drug trafficking crime," 18 U.S.C. § 924(c)(1) (1982 & Supp. V 1987). He pleaded guilty to the first count but on the second he waived his right to a jury and stood trial before the district court. 1 The district court found him guilty on that count, and imposed the mandatory five-year term, to run consecutive to the sentence imposed for count one. Lyman appeals the judgment of conviction on the second count.

FACTS

On August 19, 1988, Minneapolis police officers obtained a warrant and searched Lyman's apartment. In a kitchen drawer and one cabinet, the police found cocaine and paraphernalia used in weighing, cutting, and packaging the drug. The cabinet also contained ammunition. In another kitchen cabinet police found three or four cloth bags pulled shut with drawstrings. The record describes these as "Crown Royal" bags, originally manufactured to hold bottles of liquor sold under that brand name. One of these bags contained a loaded pistol. The ammunition found in the other cabinet fit this handgun. In the other Crown Royal bags the police found assorted coins, but this cabinet contained no drugs or drug paraphernalia. The police found customer records and more cocaine in the adjacent dining area.

The district court found that Lyman intended the handgun "to be available for possible use during drug transactions." The court emphasized that Lyman kept the gun in the kitchen where he also kept his supply of cocaine, and the gun was fully loaded. Because he intended to have the gun available, the court concluded that Lyman used the gun in relation to drug trafficking, in violation of 18 U.S.C. § 924(c)(1).

Lyman now urges on appeal that there existed an insufficient nexus between his possession of the firearm and his drug trafficking offense. He urges that he neither used nor carried the gun "during and in relation to any crime of violence or drug trafficking crime" as required to convict under 18 U.S.C. § 924(c)(1). The government urges that mere possession of a gun--even constructive possession--by a drug trafficker is sufficient evidence for conviction under section 924(c)(1). 2 We cannot agree that mere possession of a gun can sustain a conviction under section 924(c)(1). However, because in this case we find a sufficient nexus between the gun and the drug trafficking offense, we affirm the judgment of the district court.

DISCUSSION

Several other circuits have held that a conviction under section 924(c)(1) requires more than just possession of a firearm. In United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989), the court held that guns found in a trash can on a porch outside defendant's apartment could not be for use in relation to the drug offenses taking place inside the apartment. The court therefore set aside one count of conviction for violation of section 924(c)(1). However, the court held that the defendant could be convicted of illegal possession of the guns pursuant to 26 U.S.C. § 5861 (1982). Id. at 595-97. Other circuits also have distinguished possession and use. See United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir.1989) (guns concealed in hidden compartments in defendant's house might not have been sufficiently readily available to support a conviction under section 924(c)(1), but under the lower guideline standard defendant could be found to possess the guns); United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988) ("[S]ection 924(c) requires more than mere possession of a firearm").

The government argues that our decisions in United States v. Matra, 841 F.2d 837 (8th Cir.1988), and United States v. LaGuardia, 774 F.2d 317 (8th Cir.1985), stand for the proposition that mere possession suffices for conviction. The facts of these cases show, however, that the defendants did more than possess the guns; they created armed fortresses with several guns strategically placed for immediate use in an emergency. In Matra, police found ammunition in the kitchen, dining room, and in plain view in the two living rooms. They discovered loaded pistols hidden in the cushions of two living room sofas, and another gun sticking out of the zipper of a vacuum cleaner bag. In one bedroom a pistol lay under the bedcovers, and in another bedroom the police found a loaded assault rifle, loaded submachine gun, and a loaded shotgun. This court held that although the defendant did not have a gun on his person, he had control over the guns and ready access to them, and they clearly were "an integral part of his criminal undertaking." 841 F.2d at 843. The court had no difficulty holding that this record sufficiently supported the finding that the defendant "used" the guns during and in relation to drug offenses.

In LaGuardia, a search of the defendants' apartment uncovered, in addition to drugs, a loaded pistol in a purse in the defendants' bedroom, a loaded gun on a shelf in their hallway, and a rifle in the trunk of their car. This court held that the presence and availability of the weapons was such that they "had undoubted utility in the protection of the valuable supply [of drugs] and of the cash on hand." 774 F.2d at 321. In light of the evident need for protection, the evidence was sufficient to support the jury's conclusion that the defendants "used" the weapons in relation to their drug trafficking crime. Id. Clearly, an abundance of loaded weapons strategically placed throughout a crack house amounts to more than mere possession; it shows readiness to use the weapons to support the drug operation should need arise.

The government also asserts that our decision in United States v. Brett, 872 F.2d 1365 (8th Cir.) cert. denied, --- U.S. ----, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989), represents a broad interpretation of "use". The police in Brett raided a crack house and found a gun in the possession of a person other than the defendant Gray, who fled the scene and was arrested several blocks away. The government implies that by upholding the section 924(c)(1) conviction against Gray, this court expanded the meaning of "use" beyond the holdings of LaGuardia and Matra. The government fails to note that Gray was found to be a co-conspirator in the distribution of cocaine from a crack house. Gray's co-conspirator admitted that he held the gun in order to provide security for the house's drug operations. Id. at 1368. This admission clearly proved intent by all members of the conspiracy to rely on the gun in an emergency.

While more than mere possession is required for a conviction under section 924(c)(1), the defendant need not actually brandish or discharge the weapon. United States v. Matra, 841 F.2d at 843. The legislative history makes clear that the key is whether the circumstances indicate "that the defendant intended to use the gun if a contingency arose or to make his escape." S.Rep. No. 225, 98th Cong., 2d Sess. 1, 314 n. 10 (1983) reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3492 n. 10. This court has held that the intent to use a weapon or weapons in connection with a drug trafficking offense may be inferred by their "presence and availability in light of the evident need." United States v. LaGuardia, 774 F.2d at 321. We think the Second Circuit in Feliz-Cordero succinctly states the standard for determining "use" under section 924(c)(1):

[I]n order for possession of a firearm to come within the "uses" provision of section 924(c), one of the following is required: i) Proof of a transaction in which the circumstances surrounding the presence of a firearm...

To continue reading

Request your trial
43 cases
  • U.S. v. Bailey, 90-3119
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 8, 1993
    ...States v. Raborn, 872 F.2d 589, 595 (5th Cir.1989); United States v. Tolliver, 937 F.2d 1183, 1190 (7th Cir.1991); United States v. Lyman, 892 F.2d 751, 753 (8th Cir.1989); United States v. Matra, 841 F.2d 837, 841-43 (9th Cir.1988); United States v. Mason, 658 F.2d 1263, 1270-71 (9th Cir.1......
  • U.S. v. Bailey
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 4, 1994
    ...v. McFadden, 13 F.3d 463, 465 (1st Cir.1994); United States v. Breckenridge, 782 F.2d 1317, 1322-23 (5th Cir.1986); United States v. Lyman, 892 F.2d 751, 753 (8th Cir.1989); United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993); United States v. Poole, 878 F.2d 1389, 1393 (11th Cir.198......
  • U.S. v. Horne
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 16, 1993
    ...that the defendant possessed a firearm and that it was possessed during or in relation to a drug trafficking crime. United States v. Lyman, 892 F.2d 751, 752 (8th Cir.1989) cert. denied, 498 U.S. 810, 111 S.Ct. 45, 112 L.Ed.2d 21 (1990). This court has recognized that the presence and avail......
  • U.S. v. Hadfield
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 13, 1990
    ...secure or enforce their transactions"), cert. denied, --- U.S. ----, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989); see also United States v. Lyman, 892 F.2d 751, 754 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 45, 112 L.Ed.2d 21 The facts of this case do not test the limits of these hol......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT