US v. Canady

• Decision Date: 19 March 1996
• Docket Number: No. 93-CR-116L.,93-CR-116L.
• Citation: US v. Canady, 920 F. Supp. 402 (W.D. N.Y. 1996)
• Parties: UNITED STATES of America, Plaintiff v. Marcus CANADY, Defendant.
• Court: U.S. District Court — Western District of New York

920 F. Supp. 402

UNITED STATES of America, Plaintiff v.Marcus CANADY, Defendant.

No. 93-CR-116L.

United States District Court, W.D. New York.

March 19, 1996.

Paul J. Vacca, Jr., Rochester, New York, for plaintiff.

Christopher V. Taffe, Assistant United States Attorney, Rochester, New York, for defendant.

DECISION AND ORDER

LARIMER, Chief Judge.

The defendant in this case, Marcus Canady, was charged in a two-count indictment with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and with using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).Canady waived his right to a jury trial and the case was tried in a one-day bench trial on January 24, 1994.

On February 2, 1994, I issued a Decision and Order finding defendant guilty on both counts of the indictment.I subsequently sentenced Canady to a term of imprisonment of eight years and five months.

Canady has now filed a motion, pro se, to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255.In his motion, Canady raises three grounds for relief: (1)the court did not announce its verdict in open court in the presence of the defendant; (2)the court erred in finding that the firearms in question were "used" in relation to a drug offense; and (3) Canady was denied his right to effective assistance of counsel on appeal because his appellate attorney did not raise grounds (1) or (2) on direct appeal.For the reasons that follow, the motion is denied.

DISCUSSION

I.Announcement of Verdict in Open Court

At the conclusion of the trial on January 24, 1994, I reserved decision, stating to defendant that "I want to consider the cases submitted by you and your lawyer, and I will get a decision to you and your lawyer as soon as I can."Transcriptat 160.I issued my Decision and Order on February 2, 1994.

Defendant now contends that this violated Rule 43(a) of the Federal Rules of Criminal Procedure, which states:

(a) Presence Required.The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

Defendant contends that because the court issued a written decision, a copy of which was mailed to his attorney, he was denied his right to be present at the "return of the verdict."

I am not persuaded by this argument.Although there do not appear to be any reported cases directly addressing this issue, I believe that the most logical interpretation of Rule 43(a)'s use of the word "verdict" is that the rule is referring to the return of a jury verdict, not the issuance of a decision after a bench trial.For one thing, Rule 31, which deals with verdicts, states that the verdict "shall be returned by the jury to the judge in open court."Fed.R.Cr.P. 31(a)(emphasis added).Thus, the rules appear to assume that the word "verdict" means a jury verdict.

Second, the reasons underlying a defendant's right to be present at trial do not support a right, after a bench trial, to have the court announce its findings in the defendant's presence."A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure."Kentucky v. Stincer,482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631(1987)(emphasis added).The Supreme Court has "emphasized that this privilege of presence is not guaranteed `when presence would be useless, or the benefit but a shadow.'"Id.(quotingSnyder v. Massachusetts,291 U.S. 97, 106-07, 54 S.Ct. 330, 332-33, 78 L.Ed. 674(1934)).Thus, "the existence of a right to be present depends upon a conclusion that absence could, under some set of circumstances, be harmful."Polizzi v. United States,550 F.2d 1133, 1138(2d Cir.1976).

This reasoning suggests why a defendant should be allowed to be present when the jury announces its verdict.Things can go wrong when a jury verdict is announced.It may appear that the verdict is less than unanimous, incomplete, or inconsistent.Once the jurors have been dismissed, it can be difficult or impossible to resolve such problems.By being present at such a critical moment, a defendant can express his concerns to his attorney, or, through his counsel, to the court.

These concerns, however, do not present themselves in the context of the issuance of a written decision after a non-jury trial.There is no danger of a non-unanimous verdict, and any possible errors or discrepancies in the decision can be addressed in a post-trial motion or on appeal.Thus, being present to hear the decision read in open court would be "useless" to the defendant.

Furthermore, my decision would not have been altered by my announcing it in the presence of the defendant.Even if he had a right to be present, then, the issuance of a written decision would not constitute grounds for relief under § 2255.SeeUnited States v. Mackey,915 F.2d 69, 74(2d Cir.1990)(no prejudice occurred when defendant was absent during jury's announcement of verdict, since "it could not be plausibly contended that his presence would have altered the outcome of the verdict").

II."Use" of a Firearm

In his motion, defendant contends that the proof was insufficient to support the court's finding that the guns were "used" to facilitate a drug offense because there was no evidence that any drug transaction had occurred or was occurring at the time of defendant's arrest.

After the motion was filed, the Supreme Court announced its decision in Bailey v. United States,___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472(1995).The Court in Bailey held that to obtain a conviction for use of a firearm under § 924(c)(1), the Government must prove "an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense."___ U.S. at ___, 116 S.Ct. at 505."Use,"the Court said, would include activities such as "brandishing, displaying, bartering, striking with, ... firing or attempting to fire, a firearm," or referring to a firearm so as to intimidate another person.Id. at ___, 116 S.Ct. at 508.However, the Court added, the "inert presence of a firearm, without more, is not enough to trigger § 924(c)(1)....A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds."Id.

After Bailey was issued, defendant filed a supplemental brief arguing that the § 924(c)(1) charge should also be vacated under Bailey.He contends that the evidence did not show that he"used" the guns because the guns were found under a cushion on a loveseat where he was sitting.The drugs were found under the loveseat's other cushion.

Defendant's first argument is based on an incorrect assertion.Defendant states in his motion that the court"Erred In Its Finding That The Gun Was `Used' to Facilitate a Drug Transaction ..."This contention is refuted by both my prior decision and the indictment itself.I did not find that the guns facilitated a drug transaction, but that they were used during and in relation to a drug trafficking crime.That crime, charged in Count 1 of the indictment, was not for distributing drugs, but for possessing drugs with intent to distribute them.

That offense was proved beyond a reasonable doubt.As I noted in my decision, the cocaine was contained in "nine separately wrapped bags of cocaine, in a form used for distribution."Decision and Order, Feb. 2, 1994, at 7.I also pointed out that defendant was also found in possession of guns and a telephone beeper, both of which are "tools of the narcotics trade ..."Id. at 8.Thus, there was enough evidence to conclude that defendant intended to distribute the drugs.No actual distribution was necessary to find him guilty of the offense charged.

In response to defendant's second argument, concerning the impact of Bailey, the Government concedes that the evidence at trial was insufficient to support a finding of "use" of a firearm under Bailey.I agree.As stated, the two handguns were found under the cushion of a loveseat.The cocaine was found under the other cushion at the opposite end of the loveseat.Thus, the guns were merely lying "inert" near the drugs, which the Supreme Court said is not enough for a conviction for "using" a firearm under § 924(c)(1).¹

The Government notes, however, that the indictment did not charge only that defendant"used" a firearm, but that he"used and carried a firearm ..."The Assistant United States Attorney also stated in his opening statement at trial that defendant was accused of having "unlawfully used and carried a firearm, that is a hand gun, during and in relation to a drug trafficking offense."Transcriptat 8.

The Supreme Court in Bailey did not address the meaning of the word "carry" in § 924(c)(1).Noting that the Court of Appeals for the District of Columbia Circuit(whose decisions were on appeal in Bailey) had not considered the defendants' liability under the "carry" prong of the statute, the Court remanded for consideration of that basis for upholding the convictions.Bailey,___ U.S. at ___, 116 S.Ct. at 509.

Thus, Bailey did not affect earlier case law construing the word "carry" in § 924(c)(1).Moreover, since the courts prior to Bailey had "generally agreed that `carrying' was to be interpreted narrowly, while `use' was interpreted more broadly,"United States v. Pineda-Ortuno,952 F.2d 98, 103(5th Cir.), cert. denied,504 U.S. 928, 112 S.Ct. 1990, 118 L.Ed.2d 587(1992), it would seem that the Supreme Court would not be as inclined to narrow the generally-accepted interpretation of "carrying" as it was to narrow the definition of "using."

The fact that defendant in the instant case did not "use" the firearms under Bailey's construction of the word ...