US v. Kristofferson
| Citation | 926 F. Supp. 939 |
| Decision Date | 13 May 1996 |
| Docket Number | No. C-94-2171 EFL,CR-90-0338 EFL.,C-94-2171 EFL |
| Parties | UNITED STATES of America, Plaintiff, v. James D. KRISTOFFERSON, Defendant. |
| Court | U.S. District Court — Northern District of California |
James W. Ramsaur, Chapuis & Ramsaur, Oakland, CA, for Plaintiff.
Jeffrey L. Bornstein, Asst. U.S. Attorney, San Francisco, CA, for Defendant.
Defendant Kristofferson was convicted on three felony counts following a jury trial in this Court. Count 1 charged possession of cocaine with the intent to distribute. Count 2 charged conspiracy, and Count 3 charged Kristofferson with use of a firearm in connection with Count 1, the drug trafficking charge, in violation of 18 U.S.C. § 924(c). The Court sentenced him to total of ten years and three months in federal prison on July 3, 1991. Kristofferson subsequently appealed the conviction and sentence to the Ninth Circuit, and both were summarily affirmed. Kristofferson, represented by appointed counsel, brings this motion pursuant to 28 U.S.C. § 2255 making various allegations relating to his trial attorney, and contending that his conviction for use of a firearm should be reversed pursuant to the recent Supreme Court case of Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).
While Kristofferson's motion makes all of his claims, the government has at this time responded only to his Bailey claim. The Court heard oral argument on this claim on May 10, 1996. It is solely the Bailey claim that the Court addresses here.
Title 28 U.S.C. § 2255 authorizes the federal sentencing court to discharge or resentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."
The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. United States v. Addonizio, 442 U.S. 178, 184-85, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). But this does not encompass all claimed errors in conviction and sentencing. Id. at 187, 99 S.Ct. at 2241-42. Habeas corpus has long been limited to attack convictions and sentences entered by a court without jurisdiction or in violation of the Constitution or laws of the United States. Id. (citations omitted). A mere error of law does not provide a basis for collateral attack unless the claimed error constituted "`a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). When a change in the law "established that the conduct for which petitioner had been convicted and sentenced was lawful," the Court may review petitioner's claim on a § 2255 motion. Id. at 186-87, 99 S.Ct. at 2241. However, it has long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. Id. at 184, 99 S.Ct. at 2239-40 (footnote omitted).
In this instance, the change in the law related to 18 U.S.C. § 924(c) constitutes a situation in which the Court must determine whether there has been a "complete miscarriage of justice."
Kristofferson and his codefendant Robert Rutz were convicted of possession with intent to distribute 2 kilograms of cocaine and conspiracy to possess with intent to distribute 2 kilograms of cocaine. Kristofferson was arrested with a loaded 9 millimeter Smith & Wesson handgun, and Rutz had a loaded .25 caliber semi-automatic pistol.
At trial, the evidence revealed that Kristofferson and William Brooks, an informant, had a series of recorded telephone conversations in the Spring of 1990 regarding Brooks' attempt to purchase cocaine from Kristofferson. Kristofferson and Brooks arranged a meeting for June 7, 1990. On that day, Brooks and an undercover agent met Kristofferson in Kenwood in a parking lot near the firehouse. They met several times on June 7. When they could not reach an agreement, Kristofferson left the scene, but later returned. Brooks then departed in Kristofferson's truck. Brooks told the agents that he had been taken by Kristofferson to see the cocaine, which was then in Rutz' car. Kristofferson drove Brooks back to the firehouse, dropped him off, and drove away. Police officers then located Rutz and attempted to stop him, but he refused and led the police on a chase during which he threw a package containing 2 kilograms of cocaine out of the car window.
Meanwhile, Kristofferson had returned to the firehouse in his truck. Kristofferson sat in his truck with the motor running while Brooks talked to him through the driver's side window. Sergeant Harrington approached the truck and identified himself as a police officer. When Kristofferson put the truck in gear, Sergeant Harrington pointed his gun at Kristofferson's head, and he was then arrested. Harrington's search of the car revealed the loaded 9 millimeter gun under the front of the driver's seat.
At trial, Kristofferson testified that he had been threatened by Brooks, the informant, and had purchased the gun for protection. He testified that he planned to either shoot or arrest Brooks during the drug transaction.
United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985).
However, in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court held that mere possession of a weapon was not enough to satisfy the "use" prong of § 924(c). The Supreme Court held that "to sustain a conviction under the `use' prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime." Id. at ___, 116 S.Ct. at 509. However, Bailey did not address the "carry" prong of the statute, except to note that it "brings some offenders who would not satisfy the `use' prong within the reach of the statute." Id.
Following Bailey, the Ninth Circuit reexamined its case law with respect to the statute and held that Bailey had overruled, inter alia, Stewart. United States v. Hernandez, 80 F.3d 1253, 1256-57 (9th Cir.1996). The Hernandez court also examined the `carry' prong of § 924(c)(1), holding Id. at 1258, citing United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.1996).
Defendant argues, and the government agrees, that there is no evidence that Kristofferson "used" the 9 millimeter firearm in relation to the drug trafficking offense. The only dispute is whether Kristofferson "carried" the weapon in relation to the offense. In order for his conviction of the offense to stand, two elements must be shown. First, the firearm must have been transported and have been immediately available for his use. Second, the carrying must have occurred in relation to the possession of the cocaine. In analyzing the phrase "in relation to," the Supreme Court has held that "the firearm must have had some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence." Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993). As explained below, the Court finds that both prongs of this test have been met.
As stated above, the evidence at trial established that when Kristofferson was arrested outside the firehouse, a 9 millimeter Smith & Wesson was found underneath the front part of the seat of his truck. Kristofferson had driven the truck to the firehouse a short while before, and was involved in negotiations for the cocaine with Brooks at the time he was arrested. While Kristofferson argues that the gun must have actually been on his person or in his clothing in order to be "carried," Hernandez has no such requirement. For example, in Riascos-Suarez, 73 F.3d at 623, a gun was found in the driver's side of a car console, though not on the defendant's person. The Sixth Circuit found that the gun was immediately available for use and was therefore carried within meaning of § 924(c)(1). In this case, the evidence establishes that the 9 millimeter gun, though not on Kristofferson's person or in his clothing, was immediately available for use.
Kristofferson also argues that the gun was not transported since he did not flee when the police officer identified himself. However, the gun was found in the truck that defendant had just driven to the firehouse. This movement of the truck in the course of the drug transaction, with the gun immediately available for use constitutes carrying.
The Court therefore finds that the carrying prong of the test has been met.
Kristofferson argues that even if the firearm were carried, it was not carried in relation to...
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