U.S. v. Moore

• Decision Date: 29 November 1990
• Docket Number: No. 89-3199,89-3199
• Citation: 919 F.2d 1471
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William J. MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1471

919 F.2d 1471

UNITED STATES of America, Plaintiff-Appellee, v. William J. MOORE, Defendant-Appellant.

No. 89-3199.

United States Court of Appeals, Tenth Circuit.

Nov. 29, 1990.

J. Steven Schweiker, Overland Park, Kan., for defendant-appellant.

Julie A. Robinson, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., with her on the brief), Kansas City, Kan., for plaintiff-appellee.

Before McKAY and BALDOCK, Circuit Judges, and COOK, ^* District Judge.

H. DALE COOK, District Judge.

William J. Moore was convicted by a jury of one count of possession of 51.4 grams of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), one count of the use of a firearm in relation to possession with intent to distribute in violation of 18 U.S.C. Sec. 924(c), and one count of the use of a machine gun in relation to drug trafficking in violation of 18 U.S.C. Sec. 924(c).

Moore raises several issues on appeal. Moore challenges the imposition of consecutive sentences on the two counts charging violations of 18 U.S.C. Sec. 924(c) as violative of the double jeopardy clause of the Constitution, in that the count charging the use of a firearm and the count charging the use of a machine gun are duplicative. Moore next questions the sufficiency of the evidence to support the jury's verdict that the Sten machine gun and the other three firearms found in his apartment facilitated the predicate offense of possession of cocaine with intent to distribute. Moore also questions whether the affidavit submitted to obtain the search warrant alleged sufficient facts to establish probable cause for the issuance of that warrant. Finally, Moore challenges as improper the district court's upward adjustment of his sentence two levels as a leader or organizer, pursuant to Sentencing Guideline Sec. 3B1.1. For the reasons set forth below, we vacate in part and remand for resentencing on the firearms counts, and affirm as to all other issues.

I.

An undercover surveillance operation was conducted in September and October, 1988, by a Special Investigative Division of the Johnson County, Kansas Sheriff's Office, targeting narcotics trafficking. The investigation initially centered on Dale Willeford for possible drug trafficking. (R.Supp. I, p. 13). An investigator with the Division, Richard Stutzman, made two controlled buys from Willeford on October 11 and 13, 1988. (Id. at 16-17). In conversations with Stutzman, Willeford indicated that his "source" for the cocaine he sold to Stutzman was "a short distance away" and that his "source" could "always take care of me." (Id. at 18). Willeford was followed by other police officers to an apartment at the Georgetown Apartment complex in Merriam, Kansas. (Id. at 15). Willeford was observed entering Apartment 107 at 7100 Eby Drive, which was leased to defendant Moore. Continued surveillance of apartment 107 noted codefendant Larry Rogers frequently entering and leaving the apartment. At one point, Stutzman attempted to stop Rogers near the apartment to buy cocaine. Rogers told Stutzman that he had no drugs to sell, but accepted a phone number from Stutzman to call later. (Id. at 20-21). Rogers never contacted Stutzman, but Willeford later warned Stutzman to stay away from his "source". (Id. at 22).

Stutzman executed an affidavit, detailing his contacts with Willeford and his belief that Willeford's "source" was to be found at apartment 107, 7100 Eby Drive, Merriam, Kansas. Based upon that affidavit, a search warrant was obtained for the above address.

Rogers answered the door and allowed police officers serving the search warrant to enter the apartment. (R.Supp. II, p. 233). The apartment was small, with one bedroom. (Id. at 264). Moore was in the hallway leading into the bedroom when the officers entered. (Id. at 234).

In their search of the apartment, the officers seized 51.4 grams of cocaine, packaged in fifteen small Ziploc plastic bags. The officers also seized a weighing scale, small and large Ziploc plastic bags, snow seals for gram-size packages, dealing records and calculator receipts with initials next to amounts owed, all of which were alleged at trial to be indicative of distributing cocaine. (R.Supp. I, p. 35-36, 50-51). All these items, as well as $3,400 in currency, were recovered from the bedroom. From the living room, the officers seized a bong pipe and a mirror with cocaine residue and a razor blade on it. (Id. at 53-54).

The officers also seized several firearms during the execution of the search warrant. A loaded Ruger semi-automatic rifle was propped up on the floor of an open linen closet in the hallway leading to the bedroom. (Id. at 65). A loaded Jennings .22 handgun was found under the sofa cushions in the living room, where Rogers apparently had been lying. (Id. at 63). A loaded Smith & Wesson handgun was found in the bedroom, on the nightstand next to the bed. (Id. at 66). A loaded, British Sten machine gun was in an open closet in the bedroom. (Id. at 67). Ammunition for the machine gun and the other firearms was found in that same bedroom closet. (Id. at 59, 77).

At trial, several witnesses testified that they had purchased cocaine from Moore. (R.Supp. II, p. 119, 217; R.Supp. III, p. 312). These witnesses testified that they had seen various firearms in the apartment while purchasing cocaine there. (R.Supp. II, p. 121, 218; R.Supp. III, p. 313). Their testimony also indicated that generally Rogers would answer the door for cocaine purchasers. (R.Supp. II, p. 123, 199; R.Supp. III, p. 311). The actual purchases were usually made in the bedroom of the apartment. (R.Supp. II, p. 123; R.Supp. III, p. 312). Three witnesses testified that they purchased cocaine from Rogers, at the apartment, when Moore was unavailable. (R.Supp. II, p. 200, 217; R.Supp. III, p. 338).

Moore was tried by jury on a four-count superceding indictment, charging him with the following offenses:

Count 1 Possession with intent to distribute 51.3 grams of cocaine on October 14, 1988.

Count 2 Using a Jennings .22 handgun, a Ruger 10/22 .22 caliber rifle, and a Smith & Wesson 9mm handgun during and in relation to the possession with intent to distribute cocaine count charged in Count 1.

Count 3 Distributing 27 grams of cocaine on March 11, 1988.

Count 4 Using a Sten machine gun during and in relation to the drug trafficking crime alleged in Count 1.

The jury returned a guilty verdict on Counts 1, 2 and 4, and a not guilty verdict on Count 3. The trial court denied Moore's motion for judgment of acquittal and sentenced him to 33 months on Count 1, five years on Count 2, consecutive to his sentence on Count 1, and ten years on Count 4, consecutive to his sentence on Counts 1 and 2. Moore then filed a timely appeal with this court.

II.

This court recently has addressed the question of whether a conviction for a single drug trafficking offense will support the imposition of consecutive sentences under 18 U.S.C. Sec. 924(c) for multiple firearms carried or used in connection with that single offense. In United States v. Henning, 906 F.2d 1392 (10th Cir.1990), the defendant was convicted of one count of possession of a controlled substance with intent to distribute and of two counts of using a firearm during and in relation to a drug trafficking offense. At the time of his arrest, Henning had a semi-automatic pistol under his jacket; a machine gun, a rifle, a pistol (all of which were loaded), ammunition and over twenty grams of methamphetamine were found in Henning's vehicle. Id. at 1394-95. Henning was sentenced to two counts involving the machine gun and the other firearms. ¹ Id. at 1395. This court vacated the sentences on the two firearm counts against Henning and remanded for resentencing. The court stated that "where a defendant has been convicted of a single drug trafficking offense and more than one firearm was involved, a single violation of Sec. 924(c)(1) occurs and multiple consecutive sentences may not be stacked to account for each firearm seized." Id. at 1399.

Henning controls our disposition of the same issue in this case. Because Moore was convicted of only one underlying drug trafficking offense, we vacate the sentences imposed on the second and fourth counts and remand for resentencing.

III.

Moore challenges the sufficiency of the evidence to support the jury's verdict on Count 4 that he used the Sten machine gun during and in relation to his offense of possession of cocaine with intent to distribute. Moore contends that he merely possessed the machine gun, which, while visible in the bedroom closet, was not quickly and easily accessible to him. Moore also points to evidence that the machine gun malfunctioned, and to testimony from Willeford that the gun never caused him concern while at Moore's apartment. ²

Our standard of review of the sufficiency of the evidence in criminal convictions is whether the evidence "both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. McKinnell, 888 F.2d 669, 673 (10th Cir.1990).

Mere possession of the machine gun cannot support a conviction under section 924(c). The government must demonstrate some relation between the "use" of the firearm and the underlying crime. United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988). However, the government need not prove that Moore fired, brandished, or even displayed the machine gun during the drug trafficking offense. United States v. Coburn, 876 F.2d 372, 375 (5th Cir.1989). In United States v. Stewart, 779 F.2d 538 (9th Cir.1985), the court noted:

If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the...