U.S. v. McCoy

• Decision Date: 23 July 1985
• Docket Number: No. 84-2895,84-2895
• Citation: 767 F.2d 395
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernon McCOY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 395

767 F.2d 395

UNITED STATES of America, Plaintiff-Appellee, v. Vernon McCOY, Defendant-Appellant.

No. 84-2895.

United States Court of Appeals Seventh Circuit.

July 23, 1985.

Joel V. Merkel, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Lee T. Lawless, Federal Public Defender, St. Louis, Mo., for defendant-appellant.

Before BAUER and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

This appeal requires us to interpret and to apply provisions of the Dangerous Special Offender Act, 18 U.S.C. Secs. 3575-78 (1982), although other issues are presented and addressed. The appellant Vernon McCoy was found guilty of being a convicted felon in possession of a firearm in violation of 18 U.S.C. App. I Sec. 1202(a)(1) (1982), and he was sentenced as a "dangerous special offender" pursuant to 18 U.S.C. Sec. 3575(b). We vacate the sentence and remand to the district judge for findings supporting his conclusion that the appellant is a dangerous special offender and for reasons regarding the length of the sentence imposed.

Late on the evening of April 29 or early in the morning of April 30, 1984, McCoy and David Lee Jones were arrested in or near a blue pick-up truck parked in front of a bar in Brooklyn, Illinois. Officers Simms and Johnson of the Brooklyn Police Department and Officers Verbeck and Apostle of the National City Police Department participated in the arrest. The police officers were looking for the pick-up truck because it had previously been identified as being involved in a hit-and-run accident. When the police officers located the truck in front of the bar, McCoy was sitting in the driver's seat and Jones in the front passenger seat. There was no evidence that McCoy ever operated the truck.

At trial, Officer Simms testified that he ordered McCoy and Jones out of the truck, that he searched McCoy at the rear of the truck and found a .38 caliber pistol in McCoy's waistband, and that he announced in a loud voice that he had found a gun. Johnson testified that he searched Jones and found nothing and then later searched the truck and that he overheard Simms say that he had found a gun on McCoy.

Two other officers who arrived later at the scene also testified at the trial. Officer Verbeck contradicted Simms' statement that Simms searched McCoy at the rear of the truck. Verbeck said he saw Simms search McCoy at the side of the truck. He also stated that he never saw a gun, but he overheard someone mention one. He also admitted that he made out a police report indicating that a .38 caliber pistol was found in the truck. Officer Apostle corroborated Verbeck's testimony that Simms searched McCoy at the side or front of the truck, not at the rear as Simms claimed. Apostle also testified that he saw no firearm, but that he too heard someone mention a .38 caliber gun.

Jones testified that on the night of April 29, 1984, or the early morning of April 30, 1984, he did not see a firearm and he did not know if McCoy had one and that while he and McCoy were at the Brooklyn police station McCoy asked Jones to "take the weight" for the gun because Jones would get no more than a six-month sentence for possession of the gun because it was not loaded. Finally, a witness for the defense testified that both Apostle and Verbeck told him that the .38 caliber pistol had been found in the truck.

I

Defendant raises four issues on appeal: (1) the district judge erroneously instructed the jury on constructive possession of a firearm when the evidence did not support a charge of constructive possession; (2) the Government did not give the defendant "reasonable" notice pursuant to 18 U.S.C. Sec. 3575 of its intention to prosecute the defendant as a dangerous special offender; (3) the district judge failed to articulate his reasons for finding the defendant to be a dangerous special offender and for imposing an enhanced ten-year sentence on defendant; and (4) an enhanced sentence of ten years when the underlying felony carries a maximum sentence of two years is disproportionate as a matter of law and disproportionate based upon the facts of this case. We shall discuss each of these issues.

A

At trial, over defendant's objection, the judge instructed the jury that

[a] person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

The defendant contends that there was no evidence to support a charge of constructive possession. We agree. ¹ Although there was some evidence that a gun was found in or around the truck, and not on McCoy's person, there was no evidence that the defendant controlled the truck, or that at the time he was arrested he had the power to exercise "dominion or control" over the gun. ² True, defendant was found in the driver's seat of the truck, but that without more does not support any inference that he controlled the truck.

The Government argues that the testimony of David Lee Jones, a passenger in the vehicle at the time McCoy was arrested, supports a charge of constructive possession. Jones testified that he knew a gun had been found "somewhere around the truck" and that, at the police station, after their arrest, McCoy asked Jones to "take the weight" for the gun because he would be subject to lesser sanctions because the gun was not loaded. This evidence, however, demonstrates only that McCoy knew a gun had been found and that it was not loaded, and also perhaps that he owned it. It does not prove that at the time of his arrest McCoy had any physical power or control over it. Compare United States v. Haley, 758 F.2d 1294, 1297-98 (8th Cir.1985) (constructive possession shown where gun found in room of house where defendant obviously resided).

Notwithstanding, we believe that the erroneous jury instruction was harmless (see 28 U.S.C. Sec. 2111 (1982); Fed.R.Crim.P. 52(a)) and that it was harmless beyond a reasonable doubt. See United States v. Hastings, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981-82, 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). If the erroneous jury instruction had not been given, the jury undoubtedly would have convicted the defendant of actual possession. See Hastings, 461 U.S. at 510-11, 103 S.Ct. at 1981-82 ("The question a reviewing court must ask is this: absent ... [the alleged error], is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?"). Simms' testimony that he found the gun in McCoy's waistband was uncontradicted. It was corroborated by the testimony of the other officers who knew that a gun had been found during the arrest somewhere in or around the truck, by evidence that none of the other officers found the gun, and by Jones' testimony that McCoy stated that the recovered gun was unloaded. ³

We also do not believe that the jury could have been confused by the instruction, so that it improperly convicted McCoy on the theory of constructive possession. See Hastings, 461 U.S. at 516, 103 S.Ct. at 1984 (Stevens, J., concurring); Kotteakos v. United States, 328 U.S. 750, 763-64, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946). The Government's position throughout the trial, as demonstrated by its opening and closing arguments and the evidence it presented at trial, was that McCoy was in actual possession of the firearm. At trial, defense counsel acknowledged this. In addition, rather than argue that the evidence regarding the recovery of a gun in or around the truck and McCoy being found in the driver's seat of the vehicle supported a finding of constructive possession, the Government characterized this evidence as inconsequential inconsistencies resulting from the arresting officers' inexperience. The Government also repeatedly pointed out to the jury that this evidence was entirely consistent with its theory of actual possession.

Defense counsel also focused almost exclusively on the question of whether the evidence supported a theory of actual possession. His central theme was that the gun was found in or around the truck and since McCoy did not control the truck McCoy did not possess the gun.

Thus, viewing the record as a whole, we are convinced that the jury found the defendant guilty on a theory of actual possession, and that the constructive possession instruction, while error, was harmless beyond a reasonable doubt. See United States v. Mclister, 608 F.2d 785, 791 (9th Cir.1979); United States v. Bradley, 447 F.2d 657, 660 (3d Cir.1971) (per curiam); Feldstein v. United States, 429 F.2d 1092, 1094-95 (9th Cir.), cert. denied, 400 U.S. 920, 91 S.Ct. 174, 27 L.Ed.2d 159 (1970); Schybinger v. Interlake S.S. Co., 273 F.2d 307, 313-14 (7th Cir.1959).

B

Trial of this case was set for and began on September 10, 1984. On September 4, 1984, McCoy's attorney was served by the Government with a notice of its intention to prosecute McCoy as a dangerous special offender pursuant to 18 U.S.C. Sec. 3575(b). Prosecution under that provision permits the trial judge, if he finds that the defendant is a dangerous special offender, to impose a substantially stiffer penalty (up to a maximum of twenty-five years imprisonment) than he would otherwise have imposed on the defendant if the defendant had been prosecuted and sentenced only for the particular offense charged. See 18 U.S.C. Sec. 3575(b).

With respect to his sentencing as a dangerous special offender, the defendant first contends that he could not be sentenced as such because the Government did not give him reasonable notice of its intention to prosecute him as one. 18 U.S.C. Sec. 3575(a) requires that such notice be filed "... a reasonable time before trial or acceptance by the court of a plea of guilty or nolo contendere, ...." Defendant claims that notice six days before...