US v. Smith, Crim. A. No. 93-10092-01

• Decision Date: 22 July 1994
• Docket Number: Crim. A. No. 93-10092-01,93-10092-02.
• Citation: 857 F. Supp. 1466
• Parties: UNITED STATES of America, Plaintiff, v. Brandon J. SMITH, and David E. Vernon, Defendants.
• Court: U.S. District Court — District of Kansas

857 F. Supp. 1466

UNITED STATES of America, Plaintiff, v. Brandon J. SMITH, and David E. Vernon, Defendants.

Crim. A. Nos. 93-10092-01, 93-10092-02.

United States District Court, D. Kansas.

July 22, 1994.

Kenneth G. Gale, Focht, Hughey & Calvert, Wichita, KS, Jeff L. Griffith, Griffith & Griffith, Derby, KS, Steven K. Gradert, Office of Federal Public Defender, Wichita, KS, David J. Phillips, Topeka, KS, for defendant Brandon J. Smith.

Roger L. Falk, Law Office of Roger L. Falk, Wichita, KS, for defendant David E. Vernon.

MEMORANDUM AND ORDER

BELOT, District Judge.

This case comes before the court on defendant Brandon J. Smith's motion for judgment of acquittal on Count III of the indictment (Doc. 93), and defendant David E. Vernon's motion for judgment of acquittal or, in the alternative, for a new trial (Doc. 94).

Defendants were charged, in a three-count indictment, with committing the following crimes: (1) conspiring to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a) and 846; (2) possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a); and (3) using or carrying a firearm in the course of a "drug trafficking crime" in violation of 18 U.S.C. § 924(c). The case was tried to a jury. At the close of the government's case, defendants moved for a judgment of acquittal. The court granted that motion in part, finding insufficient evidence to prove beyond a reasonable doubt that either defendant was guilty of the conspiracy charges in Count I.

In connection with Counts II and III, both defendants requested and the jury was given an instruction on the lesser included offense of simple possession of crack cocaine, 21 U.S.C. § 844(a). The jury was instructed that if they found either defendant not guilty with respect to the charge of possession with intent to distribute or were unable to reach a verdict with respect to that charge, then they should consider whether the defendant was guilty of the lesser included offense of simple possession. (Doc. 83, Inst. 16). The jury was further instructed that because the term "drug trafficking crime" within the meaning of 18 U.S.C. § 924(c) includes only felonies, they could not find a defendant guilty of the firearms charges in Count III unless they also found him guilty of either possession with intent to distribute or simple possession of more than five grams of crack cocaine, both of which are punishable by imprisonment for more than one year. (Inst. 19). See 21 U.S.C. § 844(a), sentence three; 18 U.S.C. § 1(1).

The jury ultimately found defendant Smith guilty of the crimes charged in Counts II and III, possession with intent to distribute and use of a firearm in connection with a drug trafficking offense. However, the jury found defendant Vernon guilty only of the lesser included offense of simple possession of crack cocaine, in an amount of less than five grams.¹

STANDARDS FOR ACQUITTAL AND NEW TRIAL

Under Federal Rule of Criminal Procedure 29(c), "if a verdict of guilty is returned the court may on a motion for judgment of acquittal set aside the verdict and enter judgment of acquittal." In ruling on a motion of acquittal, "the court must consider all direct and circumstantial evidence that was presented in this case and the inferences that may reasonably be drawn from that evidence in the light most favorable to the government." United States v. Urena, 834 F.Supp. 1282, 1284 (D.Kan.1993), aff'd, 27 F.3d 1487 (10th Cir.1994) (citing United States v. Young, 954 F.2d 614, 616 (10th Cir.1992)); United States v. Batt, 811 F.Supp. 625, 625 (D.Kan.1993) (citing United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.1987)). The court may enter a judgment of acquittal "only if the evidence is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. White, 673 F.2d 299, 301 (10th Cir.1982).

Defendant Vernon alternatively seeks a new trial. The court may grant a motion for new trial "if required in the interest of justice." Fed.R.Crim.P. 33. "A motion for new trial `is not regarded with favor and is granted only with great caution, being addressed to the sound discretion of the trial court.'" United States v. Page, 828 F.2d 1476, 1478 (10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987) (quoting United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977)); see Urena, 834 F.Supp. at 1285; Batt, 811 F.Supp. at 626.

Defendant Smith's Motion for Acquittal

Smith seeks acquittal on his conviction under Count III, claiming there was insufficient evidence for the jury to find beyond a reasonable doubt that he was using or carrying a firearm during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). He does not challenge the conviction under Count II.

The standard for reviewing the sufficiency of evidence on criminal convictions is whether a reasonable jury could find the defendant guilty beyond a reasonable doubt given the direct and circumstantial evidence, together with the reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the government. United States v. Holland, 10 F.3d 696, 699 (10th Cir.1993), cert. denied, Kelly v. U.S., ___ U.S. ___, 114 S.Ct. 739, 126 L.Ed.2d 702 (1994) (evaluating sufficiency of evidence in a § 924(c) case).

In this case, the jury was instructed that, in order for either defendant to be found guilty of a violation of § 924(c), the government had to prove beyond a reasonable doubt that the defendant had knowingly used or carried a firearm during and in relation to a drug trafficking crime. (Inst. 18). The jury was further instructed, in accordance with Tenth Circuit case law, that

A defendant "uses" a firearm when it (1) is readily accessible, (2) is an integral part of the criminal undertaking, and (3) increases the likelihood of success for that undertaking. The government is not required to show that a defendant actually displayed or fired the weapon to prove "use." However, you must be convinced beyond a reasonable doubt that the firearm played a role in or facilitated the commission of the drug offense charged.

(Inst. 20). See United States v. Hall, 20 F.3d 1084, 1088-89 (10th Cir.1994) (citing United States v. Conner, 972 F.2d 1172, 1173-74 (10th Cir.1992); United States v. Matthews, 942 F.2d 779, 783 (10th Cir.1991); and United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989)).

Smith contends that the government failed to prove beyond a reasonable doubt elements (2) and (3) in instruction 20. According to Smith, there was no evidence that the weapons found at his home were an integral part of or increased the likelihood of the criminal undertaking. Rather, Smith contends, the evidence showed that he owned and possessed the firearms found in order to protect himself from gang members in his neighborhood. Citing the Tenth Circuit's recent decision in Hall, supra, Smith argues that the government did not produce evidence of a nexus between the alleged drug trafficking offense and the firearms and that no nexus can be inferred from the mere presence of the firearms at the scene.

The evidence adduced at trial showed that, after being tipped off by a confidential informant and obtaining a warrant, officers conducted a search of a home owned by defendant Smith, found cash, drugs, drug paraphernalia, and numerous firearms on the premises, searched a number of occupants at the home (there were at least ten), and arrested some of the occupants, including Smith and Vernon. Drugs and over $600 in cash were found on Smith's person, and guns, scales, ziplock baggies, and a pager were found in the room in which Smith was located. Three of the firearms found by police were registered to and owned by defendant Smith, and these were received as exhibits at trial: an Intratec .22 caliber semiautomatic handgun; a Spectre HC 9mm semi-automatic handgun; and a KBI Model GKK-92C 9mm handgun.

Officer Terry Fettke, who orchestrated the raid on Smith's home, testified that he had interviewed Smith at the police station after twice advising Smith of his rights. Most of the interview was taped. According to Fettke, Smith had indicated the firearms were present at his house in case he encountered difficulties during drug exchanges, but he also claimed to have had "run ins" with members of a local rival gang (the Vato Loco Boys or VLBs) and that he had to keep the guns for his protection. Smith conceded, however, that he had purchased the guns several months before moving into the neighborhood inhabited by the VLBs.

Smith himself also testified at trial and admitted that he owned the three guns found by the police and received into evidence.² Smith denied, however, using or carrying the guns in connection with drugs, claiming instead that the firearms provided him protection from the VLBs. Evidence was presented concerning Smith's own involvement in a gang (the Cash Money Gangsters or CMGs) and his alleged past confrontations with the VLBs. With respect to his post-arrest conversation with Officer Fettke, Smith maintained that he told Fettke the guns were present for his protection. A tape of Fettke's conversation with Smith was played for the jury and entered into evidence. (Ex. 16).

In the end, the jury obviously did not buy Mr. Smith's story that the guns found at his home were intended to be used solely for his protection against the VLBs. The jury instead found from the circumstances surrounding Smith's arrest and from the other evidence presented that the guns were being used to facilitate his possession and distribution of crack cocaine. Viewing the evidence in a light most favorable to the government, the court concludes that the jury's finding was reasonable and well-supported. The sheer circumstances alone are almost overwhelming. The defendant owned a home that can reasonably be characterized as a ...