United States v. MackeyUnited States v. Mackey
- Reporters:
- ,
- Before:
- Martin, Alan E. Norris, Quist
ALAN E. NORRIS, Circuit Judge. Pierre Mackey appeals his conviction for possession of a controlled substance with intent to distribute, in violation of
I.
In May 1999, police in Huntingdon, Tennessee, received a tip from a confidential informant about two men selling crack cocaine from a particular house. The police arranged to have another confidential informаnt buy crack at the house on May 13, 1999, and a search warrant was subsequently authorized for the house. The following day, when the police pulled up to the house to execute the warrant, one man ran inside, and the officers chased him into the house. Police found defendant Pierre Mackey and two other individuals in the area between the living room and the dining room and took them outside. Outside the residence, officers observed defendant with a brown paper sack, which he dropped. The sack contained 2.3 grams of crack. Defendant also had $855 in cash and a pager. Police found another brown bag containing 1.7 grams of crack on the ground near the house. Officers then searched the house and found a loaded short-barreled shotgun in the living room as well as a scanner, electronic scales, and razor blades. The house did not appear to function as a residence: there were no imрlements, food, or other signs of use in the kitchen or bathroom, no furniture in the bedroom or the rest of the house aside from in the living room, and no
After a jury trial, defendant was convicted of possession of cocaine base with intent to distribute, in violation of
II.
A. Sufficiency of the Evidence Supporting the 21 U.S.C. § 841 Conviction
Defendant argues that he possessed the cocaine for personal use and there was insufficient evidence of his intent to distribute. We review claims of insuffiсient evidence to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Section 841(a)(1) provides that it is unlawful for any person knowingly or intentionаlly to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
The government introduced evidence that defendant possessed 2.3 grams of crack cocaine at a house that he had rented for cash two weeks prior to the search, and 1.7 more grams were on the ground outside the house. There was testimony that 2.3 grams would not likely be a рersonal use amount; a witness stated that dealers usually sell a “rock” of about 0.2 grams to users. Circumstantial evidence, including razor blades, scales, a scanner, a sawed-off shotgun, and a barricaded door, indicated that the house was not a residence but a crack house used for drug trafficking. The day before the search, an informant purchased crack from a man in front of the house, which was in a neighborhood frequented by drug dealers. Defendant had $855 in cash and a pager when he was searched. Based on this evidence, a rational juror could find beyond a reasonable doubt that defendant knowingly рossessed crack with an intent to distribute it.
B. Sufficiency of the Evidence Supporting the 18 U.S.C. § 924(c) Conviction
Defendant challenges the sufficiency of the evidence supporting his conviction for possessing a firearm in furtherance of a drug trafficking crime. To the extent that the question turns on statutory interpretation, rather than on the sufficiency of the evidence, we review the issue de novo. United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000). Section 924(c) provides in relevant part:
any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced tо a term of imprisonment of not less than 5 years[.]
In this case, defendant contends that the government failed to prove the underlying drug offense, so he could not have possessed the gun in furtherance of that offense. Because, as discussed above, we conclude that the evidence is sufficient to support defendant‘s
Defendant concedes that he constructively possessed the gun, but he claims that there was no evidence that the possession was “in furtherance of” the drug crime. We are confronted with the question of what “in furtherance of” means in the statute. The term “furtherance” should be understood in its ordinary or natural meaning, which, according to the dictionary, is “a helping forward: advancement, promotion.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY (1981). In other words, the weapon must promote or facilitate the crime.
The amendment history of
The Committee recognizes that the distinction betwеen “in furtherance of” and “during and in relation to” is a subtle one, and may initially prove troublesome for prosecutors. Nevertheless, the Committee believes that “in furtherance of” is a slightly higher standard, and encompasses the “during and in relation to” language.
. . . . The government must clearly show that a firearm was pоssessed to advance or promote the commission of the underlying offense. The mere presence of a firearm in an area where a criminal act occurs is not a sufficient basis for imposing this particular mandatory sentence. Rather, the government must illustrate through specific facts, which tiе the defendant to the firearm, that the firearm was possessed to advance or promote the criminal activity.
H.R. REP. NO. 105-344 (1997), 1997 WL 668339, at *11-12 (footnotes omitted). See also United States v. Iiland, 254 F.3d 1264, 1274 (10th Cir. 2001) (explaining that “in furtherance of” is a higher standard than “during and in relation to“).
In interpreting the meaning of “possession” of a weapon “in furtherance of” certain crimes, we may draw guidance from our previous cases interpreting the “use” of a firearm “during and in relation to” the crimes. Prior to Bailey, we adhered to a “fortress theory” of use, according to which,
if it reasonably appears that the firearms found on the premises controlled or owned by a defendant and in his аctual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction, then
such firearms are used “during and in relation to” a drug trafficking crime.
United States v. Henry, 878 F.2d 937, 944 (6th Cir. 1989) (affirming a
The Judiciary Committee Report provides an illustration of an insufficient nexus by referring to the Bailey case:
The facts of the Bailey decision . . . provide a good example. The Committee believes that the evidence presented by the government in that case may not have been sufficient to sustain a conviction for possession of a firearm “in furtherance of” the commission of a drug trafficking offense. In that case, a prosecution expert testified at Mr. Bailey‘s trial that drug dealers frequently carry a firearm to protect themselves, as well as their drugs and money. Standing on its own, this evidence may be insufficient to meet the “in furtherance of” test. The government would have to show that the firearm located in the trunk of the car advanced or promoted Mr. Bailey‘s drug dealing activity. The Committee believes that one way to clearly satisfy the “in furtherance of” test would be additional witness testimony connecting Mr. Bailey morе specifically with the firearm.
In the instant case, there was an illegally possessed, loaded, short-barreled shotgun in the living room of the crack house, easily accessible to the defendant and located near the scales and razor blades. Defendant, stopped by police near the gun, possessed cocaine and a large sum of cash. From the evidence presented, a reasonable jury could infer that the purpose of the firearm was to provide defense or deterrence in furtherance of the drug trafficking for which defendаnt was arrested.
Defendant contests the trial court‘s admission of a stipulation by the government. We will not disturb a trial court‘s determination on the admissibility and relevancy of evidence absent a clear abuse of discretion. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991). We have held that an error with respect to the admission of evidence is subject tо harmless error analysis, United States v. Daniel, 134 F.3d 1259, 1262 (6th Cir. 1998), and it is well settled that an error that is not of constitutional dimension is harmless “unless it is more probable than not that the error materially affected the verdict.” United States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990) (citation omitted).
The government introduced testimony by a police officer that a confidential informant purchased cocaine in front оf the house where defendant was found the next day. The purpose was to show that the house was a crack house and therefore the cocaine possessed by defendant and his co-defendant was for distribution. The counsel for the co-defendant Champion asked to question the confidential infоrmant; to protect the informant‘s identity and avoid calling him to testify, the government agreed to stipulate that the informant did not purchase the cocaine from Champion. Defendant did not object to the general testimony about the controlled buy, but he objected to the stipulation because he claimed it would imply that the informant purchased the cocaine from him. The court overruled the objection.
Under Federal Rule of Evidence 403, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
III.
For the foregoing reasons, we affirm defendant‘s conviction.