U.S. v. Thompson
| Decision Date | 29 April 1996 |
| Docket Number | No. 94-30104,94-30104 |
| Citation | 82 F.3d 849 |
| Parties | 44 Fed. R. Evid. Serv. 462, 96 Cal. Daily Op. Serv. 2950, 96 Daily Journal D.A.R. 4879 UNITED STATES of America, Plaintiff-Appellee, v. Edward William THOMPSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Crandon Randell, Assistant United States Attorney, Anchorage, Alaska, for plaintiff-appellee.
Kevin F. McCoy, Assistant Federal Public Defender, Anchorage, Alaska, for defendant-appellant.
Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief District Judge, Presiding. D.C. No. CR-92-00113-HRH.
Before: BROWNING, WRIGHT and CANBY, Circuit Judges.
Thompson shot a man who had come to his apartment as part of a scheme to buy drugs. He was convicted of several drug- and weapons-related crimes in connection with the shooting. Among other issues, we must determine the effect of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), on his conviction under 18 U.S.C. § 924(c)(1).
At about 5:00 a.m. on July 21, 1992, four men arrived at Thompson's apartment. One, Hollen, went inside and bought a half-gram of cocaine from Thompson. Meanwhile his companions, Pitcher, Perez and Wilson, waited outside. As Hollen was leaving, the other men pushed through the door. The evidence is conflicting as to what happened next. Pitcher said they were attempting to collect, by force, $100 that Thompson owed Wilson. Thompson told police the men threatened to murder him. Thompson's girlfriend, Wendy Carpenter, testified that Pitcher threw her down and threatened to rape her.
The men scuffled, and Thompson and Wilson ended up in the bedroom out of sight of witnesses. Thompson shot and killed Wilson. Pitcher testified that the shots sounded muffled. Hollen and Pitcher fled as Carpenter called 911.
When police arrived, they questioned Thompson and Carpenter but did not arrest them. Thompson immediately showed police the gun he had used, a 9-millimeter Cobray pistol. No silencer was attached. Thompson answered some police questions, but refused to answer others, saying he was scared and wanted to talk to a lawyer.
The police later legally searched the apartment and found a "fake suppressor" in a gun case in the closet. A fake suppressor is a barrel extender that is meant to look like a silencer but does not actually muffle sound. Expert inspection, however, revealed that this fake suppressor had been modified to act as an effective silencer. The police also found another pistol, marijuana, scales with traces of cocaine and other drug-related paraphernalia.
Thompson was convicted of possession of an unregistered silencer (18-month sentence); possession with intent to distribute marijuana and cocaine (18 months for each count); use of a firearm during a drug trafficking crime (5-year mandatory sentence); and use of a firearm equipped with a silencer during a drug trafficking crime (30-year mandatory sentence). 1
Thompson complains of several instructional errors. We review de novo whether a jury instruction misstates the elements of a crime. United States v. Vaandering, 50 F.3d 696, 702 (9th Cir.1995).
Thompson was convicted of two counts of violating 18 U.S.C. § 924(c)(1), one for using the Cobray pistol during and in relation to a drug trafficking crime, and one for using a firearm equipped with a silencer during and in relation to a drug trafficking crime. He argues that the instructions improperly allowed the jury to find him guilty The conviction was predicated on these facts. When the police arrived at Thompson's apartment after the shooting, he immediately pointed out that the pistol he had fired was on the table near the door. The silencer was nowhere in sight. Police later discovered it, in a locked gun case, in the hall closet. A forensics expert tested the silencer but could not determine whether it was affixed to the pistol when Thompson fired it. One witness testified that the shots had sounded muffled. The government argued in closing that it didn't matter whether Thompson actually used the silencer.
of the latter crime without finding that he actively employed a firearm equipped with a silencer. We agree.
The court instructed the jury that the silencer was a "firearm" for the purposes of section 924(c)(1). Then it instructed that:
[t]he defendant is considered to have used a firearm if its presence in his possession in any manner facilitated the carrying out of the drug trafficking crime. A firearm may facilitate or have a role in a drug trafficking crime by emboldening the defendant who had an opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurs....
Following this instruction, the jury could have found that Thompson "used" the silencer even if it never left the closet.
The Supreme Court recently disapproved this result in Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995). It held that " § 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id. (emphasis in original). The Court specifically rejected the notion that mere emboldening or protection constitutes use. Thompson's conviction cannot stand. 2
At oral argument the government advanced the contention that, even after Bailey, the silencer need not have been affixed to the pistol at the time of the shooting in order for the firearm to be "equipped with " a silencer. 3 The government concludes that having the silencer readily available was sufficient for conviction, so that no harm resulted from the misdefinition of "use" in the instructions.
The government cites United States v. Rodriguez, 841 F.Supp. 79 (E.D.N.Y.1994), aff'd, 53 F.3d 545 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 243, 133 L.Ed.2d 170 (1995), a pre-Bailey case, to support its argument. In Rodriguez, the court ruled that a firearm is "equipped with" a silencer if the silencer is "readily available for joint use"; actual attachment is not required. Id. at 83. Thus, the court held, storage of pistols with compatible silencers near a cache of drugs constituted use of a firearm equipped with a silencer during or in relation to a drug trafficking crime.
Rodriguez relied in large part on the parity between its definition of "equipped" and the then-prevailing definition of "use." Id. at 84-85 (). 4 We do likewise, because we must "consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. 'The meaning of statutory language Bailey defines "use" to mean "operative factor." The broad definition of "equipped with" that the government urges would be inconsistent with the narrower congressional intent the Bailey court discerned: Congress could not have intended to impose a five-year penalty only if a drug trafficker actively employed a firearm, but mandate a 30-year sentence if that same defendant happened to own a compatible silencer that played no role in the predicate crime.
plain or not, depends on context.' " Bailey, --- U.S. at ----, 116 S.Ct. at 506 (quoting Brown v. Gardner, --- U.S. ----, ----, 115 S.Ct. 552, 555, 130 L.Ed.2d 462 (1994)).
Nor can such a broad definition be squared with the statutory requirement that the firearm be equipped with a silencer "during and in relation to" a predicate crime. A pistol may be equipped with a silencer in a general sense because its owner also possesses a compatible silencer. But that person is not using a firearm equipped with a silencer "during and in relation to" a drug trafficking crime if at the time of the crime, the silencer is locked away in a closet.
We hold that, at a minimum, the silencer must have played some role in the predicate drug trafficking crime in order for Thompson to be subjected to the 30-year penalty for using a firearm equipped with a silencer. Under the facts as they were presented in this case, only actual attachment would satisfy this requirement. 5
Thompson contends that we should reverse his conviction for possessing an unregistered silencer in violation of the National Firearms Act, 26 U.S.C. § 5861(d), because the jury instructions misstated the mens rea requirement. He argues that the government should have been required to prove that he knew that the fake suppressor had been altered to act as a silencer. 6
The National Firearms Act prohibits possession of certain types of firearms unless those weapons have been registered in the national firearms registration record. 26 U.S.C. § 5841, 5861(d). All silencers fall within the purview of the Act. 26 U.S.C. § 5845. In Staples v. United States, 511 U.S. 600, ----, 114 S.Ct. 1793, 1804, 128 L.Ed.2d 608 (1994), decided nine months after trial, the Court held that the mens rea for possession of an unregistered firearm is knowledge of "the features of [the firearm] that brought it within the scope of the Act." We must determine whether the jury instructions adequately conveyed the mens rea Staples prescribes, i.e., that Thompson knew the fake suppressor had been modified to act as a silencer.
The jury was instructed that to find Thompson guilty of possession of an unregistered firearm, it must find that "the defendant knowingly possessed a silencer" that was not registered to him in the national firearms registration record. The court defined "knowingly" to mean that "the defendant realized what he was doing and did not act through mistake, accident, or other innocent reason."
There are two ways to read this instruction: "knowingly"...
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