U.S. v. Munoz

• Decision Date: 22 April 1998
• Docket Number: No. 96-2797,96-2797
• Citation: 143 F.3d 632
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan R. MUNOZ, a/k/a John Doe # 1, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 632

143 F.3d 632

UNITED STATES of America, Plaintiff-Appellee, v. Juan R. MUNOZ, a/k/a John Doe # 1, Defendant-Appellant.

No. 96-2797.

United States Court of Appeals Second Circuit.

Argued Feb. 10, 1998.

Decided April 22, 1998.

Andrew G. Tretter, New York City, (Robert S. Wolf, New York City, on the brief), for Defendant-Appellant.

John M. McEnany, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Timothy J. Coleman, Assistant United States Attorney, New York City, on the brief), for Plaintiff-Appellee.

Before: VAN GRAAFEILAND, JACOBS, and LAY, ^* Circuit Judges.

LAY, Circuit Judge:

Juan Munoz filed a 28 U.S.C. § 2255 motion to vacate his conviction for using and carrying a firearm during a drug transaction, in violation of 18 U.S.C. § 924(c)(1). Munoz challenged his conviction on two grounds: (1) the charge given to the jury regarding "use" under 18 U.S.C. § 924(c)(1) was erroneous in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); and (2) the evidence adduced at trial was insufficient to support his conviction on the firearm count. The district court denied relief, finding that the erroneous charge to the jury regarding "use" constituted harmless error and that there was sufficient evidence to support the conviction under the "carry" prong of § 924(c). We affirm.

Background

On the morning of October 15, 1993, acting on a tip from a confidential informant, investigators from the New York Drug Enforcement Task Force observed Munoz driving a green Toyota Forerunner. That afternoon, the investigating officers began surveillance outside Munoz's apartment building. At approximately 8:20 p.m., Munoz returned to his apartment building, alone, in the green Forerunner. Munoz parked the Forerunner in the driveway and entered the building carrying a white plastic bag. Approximately thirty minutes later, Munoz and another man, later identified as William Hegie, exited the apartment building and approached a maroon Toyota Camry. Hegie, with Munoz standing next to him, placed something into the Camry's trunk, and removed from there a white plastic bag. Hegie, carrying the white plastic bag, and Munoz then re-entered the apartment building.

At approximately 10:15 p.m. the same evening, officers observed Munoz and Hegie exit the apartment building. Munoz got into a black Ford LTD and drove north on Hutchinson River Parkway; Hegie followed Munoz in the maroon Camry. After driving several blocks, Munoz and Hegie pulled over to the side of the road and exited their respective vehicles. The officers observed Hegie leaning under the hood of the maroon Camry while Munoz stood next to him. Munoz and Hegie then returned to their respective vehicles and drove in the direction of Munoz's residence.

Munoz returned to his residence in the black Ford LTD. Hegie continued to drive in the direction of Route 95. The officers pulled Hegie over and, with Hegie's consent, searched the maroon Camry. The officers found a brick-shaped package under the hood of the car that contained approximately one kilogram of cocaine. The officers then arrested Hegie.

The investigating officers resumed their surveillance of Munoz's residence at approximately 11:40 p.m. the same evening. At that time, the green Forerunner was not parked in the apartment building's driveway. At approximately 2:00 a.m. on October 16, 1993, officers observed Munoz return to the apartment building in the green Forerunner. The officers detained Munoz as he exited the vehicle and patted him down. The officers found a loaded magazine clip in Munoz's jacket pocket. With Munoz's consent, the officers searched the green Forerunner and found a .380 caliber handgun under the driver's seat. The magazine clip found in Munoz's jacket fit into the handgun. The officers also found a loaded .25 caliber pen gun under the floor mat on the driver's side of the car. The officers then arrested Munoz.

The government indicted Munoz of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B); two counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and one count of using and carrying a firearm during a drug transaction. ¹ On May 17, 1994, a jury returned a verdict of guilty on all counts against Munoz. On January 31, 1995, the district court sentenced Munoz to concurrent 63-month terms of imprisonment for Counts One through Three, a consecutive term of five years imprisonment on Count Four and a four-year term of supervised release. This Court affirmed Munoz's conviction by summary order. United States v Munoz, 122 F.3d 1057 (2d Cir.1995). ² After the Supreme Court issued its decision in Bailey, Munoz brought this § 2255 motion to vacate his conviction for the firearm offense under Count Four. ³

Discussion

I. Charge to Jury Regarding "Use" Under Section 924(c).

Munoz contends this Court should vacate his conviction under § 924(c)(1) because the trial court's charge to the jury defining "use" was erroneous in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Section 924(c)(1), in relevant part, imposes a five-year term of imprisonment upon any person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." 18 U.S.C. § 924(c)(1) (1997). In Bailey, the Supreme Court ruled that the term "use" in § 924(c)(1) means "active employment" of a firearm by the defendant in a manner that makes the firearm "an operative factor in relation to the predicate offense." Bailey, 516 U.S. at 143, 116 S.Ct. at 505. We agree the district court's charge on "use" was erroneous in light of Bailey. However, for the reasons stated below, we find the error to be harmless.

In defining "use" for the jury, the district court's charge stated, in part:

Now, I have to give you some matters of definition. I think to simplify things I am going to ask you to look at the third line where it says, "did use and carry." Ignore the word "carry." I am simply going to instruct you about use. The question is did the defendant use the firearms, or any of them, during and in relation to drug trafficking crimes.

* * * * * *

If someone has a weapon ready to fire or brandish, that is use within the meaning of the law, if they have it ready as a protection for their activities, as a precaution. If it is in that way an integral part of their drug activity to protect themselves, to do something that a firearm would do, protect money, protect the transaction, protect the drugs or something of that nature, having a gun accessible for that purpose is, in the law, using that gun during and in relation to a drug trafficking crime.

So if it is in a room, it is in a vehicle, it's in a cabinet, if it's ready to be obtained and used in a more immediate sense, firing or threatening, then that is use within the meaning of the law.

* * * * * *

Now, the government contends that the evidence shows that the .380 Jennings and the pen gun were in the defendant's car. The question for you is were these guns present? In fact, if you credit the government's evidence on that, and if so did the defendant have those guns in his car accessible so that he could use them in an immediate sense to fire or threaten in relation to a drug trafficking activity charged in the indictment?

(Tr. at 398-400). This charge, as it defines "use" under § 924(c)(1), is flawed in light of Bailey. Under this charge, the jury could have convicted Munoz of "using" the firearms in his vehicle even though Munoz never actively utilized the firearms.

However, even though the district court claimed to give the jury the legal definition of "use" in its charge, the charge adequately described the elements of "carrying" a firearm under § 924(c)(1), as set forth by this Court in United States v. Canady, 126 F.3d 352 (2d Cir.1997). There, this Court stated that proof of a defendant's proximity to or accessibility of a firearm, though a necessary element for a finding of "carrying" under § 924(c)(1), is not alone sufficient to support a conviction. Id. at 358. Rather, "to uphold [the defendant's] conviction for 'carrying,' the evidence must [also] establish that, during and in relation to the drug trafficking crime, [the defendant] either (1) had physical possession of the firearm, as distinct from constructive possession, ... or (2) moved the firearm from one place to another." Id. In the present case, the district court's charge would have accurately described the requisite elements of "carrying" as defined in Canady if the trial court had used the term "carry" in place of "use" throughout most of the charge. See United States v. Giraldo, 80 F.3d 667, 678 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996).

It is of no import that the district court told the jury in the charge to ignore the word "carry." The critical issue is whether the concept the district court conveyed to the jury, regardless of what it was called, accurately defined grounds upon which the jury could convict Munoz under § 924(c)(1). Since the charge accurately conveyed the requirements for finding Munoz had "carried" the firearms, it does not matter that the district court told the jury to ignore the word "carry." Thus, "even if the jury may have thought it was finding [the defendant] guilty of 'using,' the fact that the instruction with respect to 'using' properly described 'carrying' made the jury's verdict the functional equivalent of a finding of 'carrying.' " United States v. Pimentel, 83 F.3d 55, 60 (2d Cir.1996).

Under the district court's charge in this case, the jury found the two firearms were present in Munoz's vehicle (Toyota Forerunner) and were readily accessible to Munoz during the ongoing conspiracy to distribute cocaine....