U.S. v. Wilson

• Decision Date: 12 August 1999
• Docket Number: Nos. 96-6202,96-6739,s. 96-6202
• Citation: 183 F.3d 1291
• Parties: (11th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTOPHER WILSON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC HERNDON, Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1291

183 F.3d 1291 (11th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTOPHER WILSON, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC HERNDON, Defendant-Appellant.

Nos. 96-6202, 96-6739

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

August 12, 1999

Appeals from the United States District Court for the Middle District of Alabama, D. C. Docket No. CR95-192-E(01), D. C. Docket No. CR-95-192-E

Before TJOFLAT and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

TJOFLAT, Circuit Judge::

Christopher Wilson and Eric Herndon were convicted in separate trials of charges relating to the trafficking of crack cocaine. They now appeal. Wilson challenges only one of his convictions. We find no infirmity in it and therefore affirm. Herndon challenges both his convictions and his sentences. We affirm his convictions, but set aside the sentences he received for his drug offenses and remand the case for resentencing.

I.

Beginning in January 1995 and continuing until August 1995, officers of the Macon County, Alabama, Sheriff's Department conducted surveillance on what they suspected to be a "crack house" - a place where cocaine base, or "crack cocaine," is sold - within their jurisdiction. Officers conducted visual surveillance on the house at all hours of the day and night. They observed countless people visiting the house, many of whom were not from Macon County. Their visits were brief and often interrupted if police officers were in the vicinity. Two of the individuals whom officers regularly observed at the house were the appellants.

In addition to observing the activities at the crack house, officers also enlisted the services of a confidential informant who made several controlled buys of crack cocaine at the house. After one of these buys, officers raided the house, collecting drug paraphernalia and several weapons; Wilson was present in the house during the raid.

Roughly contemporaneous with this eight-month period of police surveillance, appellants were twice arrested for possession of crack cocaine. The first arrest occurred on October 17, 1994; officers in the Tuskegee, Alabama, Police Department, responding to a disturbance call at a local convenience store, detained appellants after observing a pistol on the dashboard of Herndon's car. Herndon was in the driver's seat at the time; Wilson occupied the other front seat. In the course of searching the vehicle for more weapons, the police found two pill bottles - one under each front seat - containing a combined total of seven grams of crack cocaine.

The second arrest occurred nine months later, on July 25, 1995. Officers in the Notasulga, Alabama, Police Department detained appellants - this time in Wilson's car - at a license checkpoint. Because Wilson did not have a license, he was escorted to a patrol car. There, Wilson explained to the officer that he had some identification in his glove compartment, and an officer walked back to the car to retrieve it. When Herndon, who had remained in the car, opened the passenger door so the officer could search for the license, the officer observed a black leather case between the passenger seat, where Herndon was sitting, and the door. In the case the officer saw a plastic bag containing a "milky white substance," which was later determined to be forty-six grams of crack cocaine. At that moment, Wilson fled the scene on foot. Officers placed Herndon in the police cruiser and pursued Wilson; they apprehended him not far from the checkpoint.

On August 29, 1995, a Middle District of Alabama grand jury indicted appellants on four counts. Count I charged appellants with conspiracy to possess with intent to distribute crack cocaine between October 17, 1994, and July 25, 1995, in violation of 21 U.S.C. 846 (1994).¹ Count II charged appellants with possession with intent to distribute crack cocaine on October 17, 1994, in violation of 21 U.S.C. 841(a)(1) (1994).² Count III charged appellants with using and carrying a firearm during and in relation to a drug trafficking crime (Counts I and II), in violation of 18 U.S.C. 924(c)(1) (1994).³ Count IV charged appellants with possession with intent to distribute crack cocaine on July 25, 1995, also in violation of 21 U.S.C. 841(a)(1).

At the time the indictment was returned, Wilson was in custody, and he remained in custody throughout the prosecution of that case. Herndon was not taken into custody until his arrest on January 6, 1996. Given his pre-trial detention status, Wilson was tried first, in November 1995. A jury convicted him on all four counts, and the court sentenced him to concurrent prison sentences of 151 months for the drug offenses, and a consecutive prison sentence of 60 months for the firearm offense.⁴

Herndon was tried in May 1996. After the district court direct the verdict for Herndon on Count 3, the conspiracy charge, a jury found him guilty of counts I, II, and IV of the indictment. The court sentenced Herndon to concurrent prison terms of 135 months on Counts I and II and to a consecutive prison term of 60 months on Count IV.

Wilson and Herndon now appeal. In Part II, we address Wilson's appeal. In Part III, we consider Herndon's appeal.

II.

Wilson's sole challenge on appeal concerns his conviction for violating 18 U.S.C. 924(c)(1), which prohibits a person, "during and in relation to any . . . drug trafficking crime," from "us[ing] or carr[ying] a firearm." Specifically, Wilson contends that a Supreme Court decision that was handed down between his trial and his sentencing hearing, Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), mandates a retrial of Count III of his indictment, which alleged that Wilson "did knowingly use and carry a firearm" on October 17, 1994, in committing the offenses charged in Counts I and II. Bailey significantly narrowed the "use" prong of section 924(c)(1) by requiring proof under that prong of "active employment" of the firearm in the commission of the underlying offense. See id. at 144, 116 S. Ct. at 506. Wilson claims that the Bailey decision's treatment of the "use" prong of section 924(c)(1) is important here given that (1) the indictment alleged that Wilson "used and carried" a firearm, (2) the district court instructed the jury more extensively on the "use" prong than on the "carry" prong of section 924(c)(1), and (3) the prosecutor, in closing argument to the jury, focused on the word "use" in contending that the presence of the firearm on the dashboard of Herndon's automobile (from where the police seized the firearm) rendered Wilson guilty of the section 924(c)(1) offense. Wilson contends that, because there was no active employment of the firearm in this case, it was impermissible for the prosecutor to focus his argument on, and the court to charge the jury on, the "use" prong of section 924(c)(1).

At his sentencing hearing, Wilson, citing the intervening Bailey decision, moved the court to dismiss Count III; alternatively, he moved the court to grant him a new trial on that count. In essence, he claimed, as he does on appeal, (1) that the erroneous jury instruction on the "use" prong of section 924(c)(1) led to an unreliable jury verdict; and (2) that the evidence of "carrying" was insufficient to support a conviction under section 924(c)(1).⁵ The court denied his motion.

We previously have had occasion to address these very claims. In United States v. Range, 94 F.3d 614, 617-20 (11th Cir. 1996), a gun was found under the front seat floor mat of a car the defendant Range drove to the site of a drug transaction. The gun was found by surveillance agents when they arrested the participants in the transaction. Range was convicted of committing two drug offenses and of "using and carrying" a firearm while committing those offenses in violation of section 924(c)(1).⁶ Id. at 616. He appealed arguing both that the evidence was insufficient to support a conviction under the "carry" prong of section 924(c)(1), and that the district court's erroneous jury instruction on the "use" prong of section 924(c)(1) led to an unreliable jury verdict.

The panel first addressed Range's sufficiency claim; it found that the evidence of the firearm under the floor mat of the car was sufficient to support a jury finding that the defendant was "carrying" the firearm. Id. at 618; see also Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911, 1918-19, 141 L. Ed. 2d 111 (1998) (concluding that "carrying" for the purposes of section 924(c)(1) includes carrying a firearm in a vehicle, whether or not it is immediately accessible); United States v. Farris, 77 F.3d 391, 395-96 (11th Cir. 1996) (evidence sufficient to support a conviction under section 924(c)(1) when the gun was found in the glove compartment of a vehicle used as a drug distribution center). Clearly, then, in our case, the evidence, which established that the firearm was on the dashboard⁷ of the vehicle in which Wilson was apprehended, was sufficient to support a finding that Wilson was "carrying" a firearm.

The Range court next addressed the district court's erroneous jury instruction on the "use" prong of section 924(c)(1). The district court instructed the jury 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...