U.S. v. Taylor

• Citation: 18 F.3d 55
• Decision Date: 15 February 1994
• Docket Number: D,No. 436,436
• Parties: 38 Fed. R. Evid. Serv. 1102 UNITED STATES of America, Appellee, v. Curtis TAYLOR, Defendant-Appellant. ocket 93-1404.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 55

18 F.3d 55

38 Fed. R. Evid. Serv. 1102

UNITED STATES of America, Appellee, v. Curtis TAYLOR, Defendant-Appellant.

No. 436, Docket 93-1404.

United States Court of Appeals, Second Circuit.

Argued Nov. 2, 1993.

Decided Feb. 15, 1994.

Henriette D. Hoffman, The Legal Aid Society, New York, N.Y., for defendant-appellant.

Steven M. Witzel, Assistant United States Attorney for the Southern District of New York, New York, N.Y., (Mary Jo White, United States Attorney for the Southern District of New York, Alexandra Rebay, Assistant United States Attorney for the Southern District of New York, New York, N.Y., of counsel), for appellee.

Before: OAKES, KEARSE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Curtis Taylor appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Stanton, J.). The underlying four count indictment charged Taylor with (1) possessing heroin with intent to distribute, in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(C); (2) using and carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c); possessing a gun and ammunition which had been shipped in interstate commerce, after having been convicted of a felony, in violation of 18 U.S.C. Sec. 922(g); and possessing an unregistered firearm without a serial number, in violation of 26 U.S.C. Secs. 5861(d),(i). After a three-day trial, the jury convicted For the reasons set forth below, the judgment of conviction is affirmed.

Taylor on the three firearms counts. On appeal, Taylor contends that there was insufficient evidence to convict him of "use" of a firearm in violation of Sec. 924(c). He further claims that the district court erred by admitting certain expert testimony.

BACKGROUND

On July 5, 1991, pursuant to information provided by two confidential informants, the New York City Housing Authority Police Department ("the police") obtained and executed a search warrant for the apartment occupied by Curtis Taylor. The government's evidence at trial showed that upon entering the apartment, the police found a fully loaded nine-millimeter submachine gun under a cushion of Taylor's living room couch. Also found within the apartment were the following: (1) approximately 237 glassine envelopes of heroin stamped with different logos, including "Goodyear" and "Public Enemy"; (2) ammunition for a machine gun, a submachine gun, various revolvers, and shotguns; (3) photographs of Taylor holding a submachine gun like the one found lodged in the living room couch; (4) envelopes addressed to Taylor at that address; (5) two notebooks containing references to various amounts of "Goodyear" and "PE," and recording transactions involving several thousands of dollars next to the names of various individuals, including "Curtis"; and (6) hundreds of empty crack vials and five vials of cocaine.

Taylor was arrested in the street outside the apartment when the police came to execute the search warrant. A four-count indictment was subsequently filed. Count One charged Taylor with possessing heroin with intent to distribute in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 841(b)(1)(C). This count was later dismissed after Taylor pleaded guilty to the same conduct in New York State Supreme Court. Count Two charged him with using and carrying a loaded nine-millimeter submachine gun during and in relation to the distribution and possession of heroin with intent to distribute, in violation of 18 U.S.C. Sec. 924(c). Count Three charged that Taylor, a prior felon, possessed a gun and ammunition which had been shipped in interstate commerce, in violation of 18 U.S.C. Sec. 922(g). Finally, Count Four charged that his possession of the submachine gun also violated 26 U.S.C. Sec. 5861(d),(i) because the firearm was not registered and lacked a serial number.

At trial, over the objection of defense counsel, the government elicited expert testimony concerning the use of the type of gun found in Taylor's apartment by drug dealers. Expert testimony was also given concerning the amount of heroin consistent with personal drug use.

After a three-day trial, the jury convicted Taylor on the three firearms counts. Taylor was subsequently sentenced to thirty years' imprisonment, to be followed by five years of supervised release.

This appeal followed.

DISCUSSION

I. Sufficiency of Evidence of Gun Use Charge

On appeal, Taylor first challenges the sufficiency of the evidence supporting his conviction under 18 U.S.C. Sec. 924(c), for using and carrying a firearm in relation to a drug trafficking crime. As a preliminary matter he claims that it was not proven that the weapon found in the apartment belonged to him. Next, Taylor essentially claims that there was insufficient evidence to support a finding of the requisite nexus between the drugs and the gun found in his apartment. For the reasons discussed below, we disagree with both of Taylor's contentions.

A defendant challenging the sufficiency of the evidence bears "a 'very heavy burden,' " see United States v. Alkins, 925 F.2d 541, 555 (2d Cir.1991) (citation omitted), as the evidence must be viewed " 'in the light most favorable to the government.' " See United States v. Torres, 901 F.2d 205, 216 (2d Cir.) (citation omitted), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). The relevant inquiry "is not whether this court believes that the evidence at trial established guilt beyond a reasonable With these general considerations in mind, we turn to Taylor's claim that because five people lived in the apartment, it was not proven that the weapon found there was his. We disagree. Taylor seems to ignore other significant evidence. First, most of the other narcotics-related evidence was found in his bedroom. Also found there was a photograph of Taylor holding a gun identical to the one found under the sofa. In addition, Taylor's name was in the narcotics record book, and guns are recognized as "tools of the [narcotics] trade." See, e.g., United States v. Crespo, 834 F.2d 267, 271 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988). Accordingly, there was clearly sufficient evidence to permit a jury to find that the gun belonged to Taylor.

doubt.... [r]ather, an appellate court hearing a criminal case must uphold a conviction if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." United States v. Brown, 937 F.2d 32, 35 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 323, 116 L.Ed.2d 264 (1991).

We next turn to the law concerning Sec. 924(c) violations, and Taylor's specific claims regarding that charge. Section 924(c) provides, in relevant part, that

[w]hoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years, ... and if the firearm is a machine-gun, ... to imprisonment for thirty years.

This Court has on numerous occasions made it clear that a firearm need not actually be fired or exhibited during a drug trafficking offense to constitute "use" under Sec. 924(c). See, e.g., United States v. Medina, 944 F.2d 60, 66 (2d Cir.1991) (finding "use" of firearm where defendant maintained a gun in the same room as his narcotics "buy money"), cert. denied, --- U.S. ----, 112 S.Ct. 1508, 117 L.Ed.2d 646 (1992); United States v. Alvarado, 882 F.2d 645, 654 (2d Cir.1989) (finding "use" of firearm where agents found several weapons "strategically located to protect the substantial quantities of cocaine that were packaged and sold in the apartment"), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990); United States v. Meggett, 875 F.2d 24, 29 (2d Cir.) (finding "use" of firearm where guns were scattered around apartment that was used for storing and packaging narcotics), cert. denied, 493 U.S. 858, 110 S.Ct. 166, 107 L.Ed.2d 123 (1989). Rather, we have found "use" of a firearm under Sec. 924(c) "where circumstances surrounding the crime indicate that the firearm was an integral part of the narcotics offense and facilitated that offense." Medina, 944 F.2d at 66 (quotations omitted).

In United States v. Feliz-Cordero, we explained that one way in which the above standard could be met was if "[t]he circumstances surrounding the presence of a firearm in a place where drug transactions take place suggest that it was strategically located so as to be quickly and easily available for use during such a transaction." See 859 F.2d 250, 254 (2d Cir.1988). Whether this scenario has been established is clearly a very fact-intensive question requiring a careful examination of, among other things, where the gun was located and what else was found in the apartment. See, e.g., Alvarado, 882 F.2d at 654 (noting placement of guns, drug paraphernalia, drugs, and cash in apartment).

Given the facts of this particular case, we find that the standard has been met. According to evidence at trial, the firearm, a nine-millimeter submachine gun, was found under a sofa cushion located approximately three feet from the front entrance to Taylor's apartment. Also found within the apartment were 237 glassine envelopes of heroin, hundreds of empty crack vials, five full crack vials, and two notebooks containing records of transactions involving thousands of dollars. The records contained references to "Curtis" and to the logos stamped on the glassine envelopes of heroin. Viewing this evidence in the light most favorable to the government, as we are bound to do, we find that a reasonable trier of fact could have inferred that the submachine gun was used to protect drug transactions that occurred in the apartment. Cf. United States v. Lopez, 756 F.Supp. 810, 820 (S.D.N.Y.1991) (finding evidence insufficient to support charge of use...