U.S. v. Range

• Decision Date: 11 September 1996
• Docket Number: No. 93-9476,93-9476
• Parties: 45 Fed. R. Evid. Serv. 757, 96 FCDR 3751 UNITED STATES of America, Plaintiff-Appellee, v. Arraion RANGE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 614

94 F.3d 614

45 Fed. R. Evid. Serv. 757, 96 FCDR 3751

UNITED STATES of America, Plaintiff-Appellee, v. Arraion RANGE, Jr., Defendant-Appellant.

No. 93-9476.

United States Court of Appeals, Eleventh Circuit.

Sept. 11, 1996.

Frank L. Derrickson, Decatur, GA, for Appellant.

Carolyn J. Adams, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER ^*, District Judge.

SCHWARZER, Senior District Judge:

Defendant Arraion Range and two co-defendants were charged in two counts with conspiracy to possess cocaine with intent to distribute and attempt to possess cocaine with intent to distribute. A third count against Range alone charged that he knowingly used and carried a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). A jury convicted all defendants on all counts. The district court denied Range's motion for judgment of acquittal and sentenced him to sixty months on the firearm count, consecutive to a sixty-three month sentence on counts one and two. Range appeals from the judgment. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

FACTS

An informant, Glover, arranged to sell cocaine to co-defendant Hammond at an Atlanta restaurant. At the appointed time, Range drove up and parked in the restaurant parking lot. Shortly thereafter, co-defendant Mathis drove up with Hammond. Hammond and Mathis discussed the deal with Glover. DEA Agent Clark, who was posing as the source, waited in his parked car nearby. When Glover motioned for Clark to join them, Clark said that Glover would have to see the money before he would show them the cocaine. Hammond and Glover walked to Mathis' car and told him that Glover needed to see the money. Mathis made a phone call for the money to be brought. Range then moved his car next to Mathis'. Hammond got into Range's car, picked up a plastic bag from the floor, and showed a sum of money to Glover. Hammond exited the car and he and Glover walked back to where Mathis was waiting. Glover told Clark he had seen the money. Clark then drove his truck over to where the others were gathered and showed Hammond two packages which appeared to be two kilograms of cocaine. All three participants were then arrested. A search of Range's car at the time of the arrest disclosed a loaded, .380 pistol under the floormat by the front seat, along with a bag containing $40,000 in cash.

DISCUSSION

Range challenges his convictions on three grounds: (1) that the firearm count should be dismissed because the evidence was insufficient to show that he used or carried a firearm during or in relation to a drug trafficking offense; (2) that the court's instructions to the jury on the firearm count were erroneous; and (3) that the court's exclusion of exculpatory statements was reversible error.

I. SUFFICIENCY OF EVIDENCE

Range does not dispute that the gun was found in the car he was driving and that he was aware the gun was in the car. He contends, however, that there is no evidence to show that he "used" or "carried," or intended to use, a firearm during or in relation to a drug trafficking offense.

Sufficiency of evidence is a question of law reviewed de novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir.), cert. denied, 513 U.S. 967, 115 S.Ct. 434, 130 L.Ed.2d 346, and cert. denied, 513 U.S. 1031, 115 S.Ct. 611, 130 L.Ed.2d 521, and cert. denied, 513 U.S. 1032, 115 S.Ct. 612, 130 L.Ed.2d 521 (1994). We review the evidence in the light most favorable to the government. Id. To uphold the trial court's denial of the motion for judgment of acquittal and the jury's guilty verdict, we need only find that a reasonable fact finder could conclude that the evidence established the defendant's guilt beyond a reasonable doubt. United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991).

The government concedes that the evidence is insufficient to support a conviction for "use" of a firearm after Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995) (requiring proof of active employment of the firearm in the commission of the offense to establish "use" under 18 U.S.C. § 924(c)(1)). The government contends, however, that a new trial is unnecessary because the indictment charged Range under both the "use" and "carry" prongs of section 924(c)(1) and the evidence sufficed to establish the "carrying" of a firearm during or in relation to the offense.

With respect to the sufficiency of the evidence, our recent decision in United States v. Farris, 77 F.3d 391 (11th Cir.1996), is squarely on point. There, a gun was found in the glove compartment of the car from which drugs had been distributed. Farris, who had set up the drug deal and was to make the sale, was a passenger in the car being used to make the drug delivery. He was arrested while attempting to make the delivery; he was not in the car when it was stopped and a search revealed the gun. The government conceded that after Bailey there was no "use," but argued that the evidence sufficed to support a conviction under the "carry" prong. We affirmed the conviction, holding that "the jury could find that the firearm was being carried by Farris in the vehicle." Id. at 396. We see no distinction between the facts in Farris and those in this case. Here, defendant knowingly carried a gun under the floormat of the car when he delivered the money for the cocaine. See also United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.1996) (upholding a conviction under the carrying prong on evidence that the defendant, shown to have been a participant in a drug transaction, drove a car containing a large amount of cash and "a loaded weapon near the driver's seat.").

II. THE EFFECT OF THE ERRONEOUS JURY CHARGE

The government contends that, although the instruction with respect to "use" was incorrect, because the evidence was sufficient to establish that Range carried the firearm (as discussed above), the jury's general verdict can be upheld.

A. The Sufficiency of the "Carrying" Instruction

Initially, Range argues that the "carrying" charge was erroneous.

The court instructed the jury in relevant part as follows:

Now members of the jury, as to Count Three, Title 18, United States Code, Section 924(c)(1), makes it a separate crime or offense for anyone to use or carry a firearm during and in relation to the commission of a drug trafficking offense.

A defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt: First, that the defendant committed the felony offense charged in count one and count two; second, that such offense was a drug trafficking offense; and, third, that the defendant knowingly used or carried the firearm described in the indictment while committing such drug trafficking offense.

To show use of the firearm the government need not prove that the firearm was fired, brandished, or even displayed during the drug-trafficking offense. However, mere presence of the firearm would not constitute use within the meaning of the statute. Rather, possession of a firearm constitutes use in relation to the drug-trafficking offense if the firearm played a purpose or function in carrying out the drug-trafficking offense.

Range contends that the court erred in failing to provide a definition of "carry," but he specifically waived that objection at trial. He also contends, however, that the "carrying" charge was erroneous in omitting an essential element, i.e., that the firearm was carried "during and in relation to the commission of" the offense. He relies on United States v. Stewart, 779 F.2d 538 (9th Cir.1985)- , cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987), and United States v. Mendoza, 11 F.3d 126 (9th Cir.1993), both holding that failure to instruct on the relational element of section 924(c)(1) is constitutional error. In Mendoza, the court held that the omission was not cured by inclusion of the relational language in the description of the indictment and of the provisions of section 924(c)(1) that the trial court had given the jury. The court said:

It was Instruction No. 33 that informed the jury exactly what it must find in order to convict, and that instruction conspicuously omitted any requirement that the gun be used "in relation to" the drug offense.

11 F.3d at 129.

A later decision of the Ninth Circuit distinguished Mendoza on the ground that it had not been decided under the plain error rule, the defendant having raised the objection at trial. United States v. Gallegos-Corrales, 37 F.3d 548, 550 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995). In Gallegos-Corrales, the court declined to find plain error where a supplemental instruction included a statement that the government need only prove "that the defendant chose to carry the firearm in relation to that transaction." Id. at 549.

The plain error rule applies here because Range raised this issue for the first time on appeal. United States v. Rojas, 502 F.2d 1042, 1045 (5th Cir.1974); United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). While the court's instruction on what the jury had to find to convict initially omitted the relational requirement, it included that requirement at the end of the instruction, albeit with reference to "use." But the omission of a specific instruction applying the relational element to the "carrying" prong is plain error only if there is a "significant possibility the jury might have acquitted if it had considered the matter." United States v. Steward, 16 F.3d 317, 320 (9th Cir.1994) (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985)).

In Steward, the court...