U.S. v. Savoires, 04-2140.

• Citation: 430 F.3d 376
• Decision Date: 30 November 2005
• Docket Number: No. 04-2140.,04-2140.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jermaine SAVOIRES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 376

430 F.3d 376

UNITED STATES of America, Plaintiff-Appellee, v. Jermaine SAVOIRES, Defendant-Appellant.

No. 04-2140.

United States Court of Appeals, Sixth Circuit.

Argued: November 1, 2005.

Decided and Filed: November 30, 2005.

ARGUED: Todd A. Shanker, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Todd A. Shanker, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Susan E. Gillooly, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MARTIN, NELSON, and ROGERS, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

In June of 2004 this court held that "18 U.S.C. § 924(c) criminalizes two separate and distinct offenses": "(1) using or carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug trafficking crime." United States v. Combs, 369 F.3d 925, 930-33 (6th Cir.2004).

Prior to the Combs decision, the defendant in the case at bar was charged with and convicted of several crimes under an indictment one count of which improperly combined elements of both § 924(c) offenses. At trial the jury was given instructions that tended to compound the confusion. These errors cast substantial doubt on whether the defendant was unanimously convicted of an offense criminalized by § 924(c). We shall therefore reverse the § 924(c) conviction.

Under separate counts of the indictment the defendant was convicted on felon-in-possession and drug trafficking charges. Those convictions will be affirmed, the defendant having failed to show prejudice resulting from a violation of his Sixth Amendment right to confront witnesses. We shall, however, vacate the sentence for these convictions because of the intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The case will be remanded for resentencing.

I

On May 5, 2003, a Detroit police officer had an informant make a controlled purchase of crack cocaine at a suspected drug house. On the strength of an affidavit describing the purchase, the officer obtained a warrant to search both the house and the seller of the drug.

Police officers executed the warrant two days later. The officers entered the house forcibly after announcing "police, search warrant." The defendant, Jermaine Savoires, ran out a back door, was apprehended, and was instructed to get on the ground. When Mr. Savoires was permitted to stand, two plastic bags fell out of his clothing. These bags, and a third bag found in a subsequent search of Savoires' clothing, contained paper packets of heroin and small plastic bags of crack cocaine. The packaging suggested to the police that the drugs were intended for distribution.

Inside the house officers found a loaded shotgun beside a couch in what was described as the dining room. Five persons — but no other drugs, firearms, or ammunition — were discovered in the house.

An officer interrogated Mr. Savoires at the scene. In the course of the interrogation the officer posed written questions to which Mr. Savoires wrote out answers that he initialed. Among the questions and answers were the following:

"Q Were you in possession of cocaine & heroin when the Police arrived?

A — Yes. J[ermaine].S[avoires].

Q Why were you in possession of cocaine & heroin?

A — Because I was selling it. J.S.

* * * * * *

Q Did you have a loaded shotgun at 13838 Goddard?

A — Yes. J.S.

Q Why did you have the shotgun at 13838 Goddard?

A — For protection. J.S."

A federal grand jury handed up a three-count indictment charging Mr. Savoires with (1) possession of a firearm after he had been convicted of a felony, (2) possession of cocaine base and heroin with intent to distribute them, and (3) both carriage and possession of a firearm "during and in relation to and in furtherance of a drug trafficking crime...."

Before trial, Mr. Savoires moved for an order requiring the government to produce the informant whose controlled purchase had led to issuance of the search warrant. The district court denied the motion on the ground that the informant's involvement had been limited to procurement of the warrant, the validity of which was not at issue. The court ruled that the government could present testimony that a search warrant was obtained on the basis of the informant's controlled buy, but the court suggested that the warrant itself (which contained the informant's description of the seller) might not be admissible.

The parties stipulated at trial that Mr. Savoires had a prior felony conviction. They also stipulated to the type and weight of the drugs that Mr. Savoires had on his person.

The parties agreed upon proposed jury instructions. The agreed instructions covering the third count of the indictment — the § 924(c) charge — started out by saying that the defendant had been charged "with the crime of possession of a firearm in furtherance of a drug trafficking crime." (So far so good, as far as consistency with the statute is concerned.) The instructions then went on to quote the relevant language of the indictment, including a part alleging that the defendant "did knowingly carry and possess [a described shotgun] during and in relation to and in furtherance of a drug trafficking crime...."

Here, as can be seen by the quotations from Combs with which we began this opinion, the portion of the indictment that was to be read to the jury borrows one of its verbs from the statutory language that creates the first § 924(c) offense, while the other verb relates to the second § 924(c) offense. And the qualifying phrase for the first offense, "during and in relation to" a crime of the type described, is conjoined with the qualifying phrase for the second offense, "in furtherance of" such a crime.

After quoting the indictment, the agreed instructions went on to quote § 924(c) itself; the instructions thus repeated statutory language that speaks of a person who "during and in relation to" a drug trafficking crime "uses or carries... a firearm, or who, in furtherance of [a drug trafficking crime], possesses such a firearm...." The clarity of the statute was then muddied by a gloss in which the agreed instructions said that "[t]he crime of using, carrying, or possessing a firearm during and in relation to a ... drug trafficking crime ... has two essential elements...." (Emphasis supplied.) The instructions described these elements as follows:

"One: The crime of possession with intent to distribute cocaine base and heroin ... was committed; and

Two: During and in relation to the commission of that crime, the defendant knowingly used or carried or possessed a firearm."

The district court gave the agreed instructions to the jury with minor changes that are not relevant here. The prosecutor echoed the faulty § 924(c) instructions in closing argument, telling the jury that the second element of the § 924(c) offense consisted of "possess[ing] a firearm during and in relation to" a drug trafficking crime.

The jury convicted Mr. Savoires on all charges. He received concurrent 46-month sentences for the felon-in-possession and drug trafficking convictions and a consecutive 60-month sentence for the § 924(c) conviction. At sentencing, the district judge explained that he would have imposed a lighter sentence had the sentencing guidelines permitted it:

"I intend to give you the lowest sentence I can. Unfortunately, the guidelines are here and I have to follow the guidelines. Even the lowest sentencing is a lot of time, very frankly, and probably more time than I would give you but for the guidelines.... As I say, it's a lot of time, a lot more time than I would give you if I had any discretion."

Mr. Savoires filed a timely appeal.

II

Mr. Savoires makes two arguments relating to his conviction under 18 U.S.C. § 924(c). First, he argues that the § 924(c) count of the indictment improperly charged two separate offenses. Second, he argues that the jury instructions amended the indictment so as to allow a conviction for conduct not criminalized by § 924(c). We find these arguments largely persuasive.

Section 924(c) of Title 18, United States Code, mandates an additional penalty of at least five years of imprisonment for "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." It is now settled in this circuit, to repeat, that § 924(c) criminalizes two distinct offenses: (1) a "use or carriage" offense, which has "during and in relation to" as its "standard of participation," and (2) a "possession" offense, which has "in furtherance of" as its standard of participation. Combs, 369 F.3d at 930-33.

In the light of Combs, the § 924(c) charge against Mr. Savoires was clearly duplicitous — i.e., it "set[] forth separate and distinct crimes" in a single count. United States v. Davis, 306 F.3d 398, 415 (6th Cir.2002), cert. denied, 537 U.S. 1208, 123 S.Ct. 1290, 154 L.Ed.2d 1054 (2003). Although the § 924(c) count was captioned, unexceptionably, "Possession of Firearm in Furtherance of Drug Trafficking Crime," this count proceeded to allege, as we have seen, that Savoires "carr[ied] and possess[ed]" a firearm "during and in relation to and in furtherance of" a drug trafficking crime. (Emphasis added.)

A duplicitous charge calls into question the unanimity of a verdict of guilty. See Davis, 306 F.3d at 415, 416. But such a charge is not prejudicial per se, because proper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise exist as to whether all members of the jury had found the defendant guilty of the same offense. See id. at 415-16. In Davis, the indictment charged the defendant with "us[ing], carry[ing], and possess[ing]" a firearm "in furtherance of" a crime of...