UNITED STATES of America, Appellee, v. Michael McFADDEN, a/k/a Michael Hughes, Defendant, Appellant. UNITED STATES of America, Appellant, v. Michael McFADDEN, a/k/a Michael Hughes, Defendant, Appellee.
Nos. 92-2265, 92-2340
United States Court of Appeals, First Circuit
Heard Sept. 9, 1993. Decided Jan. 18, 1994.
13 F.3d 463
Before BREYER, Chief Judge, ALDRICH, Senior Circuit Judge, and MCAULIFFE, District Judge.
III.
Finally, we find no error in the substance of the district court‘s finding that incarceration will have a realistic possibility of causing respondent to testify. As respondent has not challenged this finding directly, we note only the following. The determination to be made by the district court in this regard “is far removed from traditional fact-finding“—the court “is obliged to look into the future and gauge, not what will happen, but the prospect that something will happen.” In re Parrish, 782 F.2d 325, 327 (2d Cir.1986) (emphasis in original). “Even if the judge concludes that it is the contemnor‘s present intention never to testify, that conclusion does not preclude the possibility that continued confinement will cause the witness to change his mind.” Simkin v. United States, 715 F.2d at 37. Given the “speculative” nature of such inquiry, United States v. Jones, 880 F.2d 987, 989 (7th Cir.1989), the district court enjoys wide latitude in gauging whether incarceration will be (or will remain) coercive. See, e.g., Simkin v. United States, 715 F.2d at 38 (“virtually unreviewable discretion“).
The court here conducted a careful evaluation of the individual circumstances pertaining to respondent. It properly discounted the claim that respondent (having recently completed a three-year term on the drug offense) was sufficiently familiar with prison life as to render further incarceration noncoercive. Unlike earlier, respondent now carries “the keys of [the] prison in [his] own pocket.” Hicks v. Feiock, 485 U.S. 624, 633, 108 S.Ct. 1423, 1430, 99 L.Ed.2d 721 (1988) (internal quotation omitted). It properly determined that his family ties might eventually induce a change of heart. And it was justified in concluding that his present resolve never to testify might soften over time. See, e.g., Freligh I, 894 F.2d at 883 (“faced with protracted incarceration [the contemnor] is quite likely to reduce his estimate of the gravity of the threat [of reprisal]“).
Affirmed.
Alan D. Rose with whom Marilee Denelle and Nutter, McClennen & Fish were on brief, for defendant, appellant.
Lon F. Povich, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., was on brief, for appellee.
* Of the District of New Hampshire, sitting by designation.
Defendant was indicted in two counts: Count One, “On or about February 26, 1991, at Boston . . . defendant herein did knowingly and intentionally possess with intent to distribute . . . cocaine . . . in violation of
Before discussing the statute further, we review the facts in the light, of course, most favorable to the government. United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987).
That the gun was unloaded, and no ammunition found, could be evidence in defendant‘s favor, but unloaded guns can be used aggressively. McLaughlin v. United States, 476 U.S. 16, 17-18, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) (unloaded gun is “dangerous weapon” for purposes of
We agree with defendant that the word “uses” calls for something more than “possesses.” We may further agree that in defendant‘s transaction with the officers he did not use the gun, and had no intent to. The difficulty is that the drug trafficking crime, as defined in
It could be said that mere maintenance of a secret fortress is not a present use, but is an intent regarding possible future use. However, we did not, and the majority of the circuits do not, draw that distinction. See United States v. Wesley, 990 F.2d 360, 365 (8th Cir.1993) (“presence and ready availability of a firearm at a house where drugs are dealt” is sufficient); United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990) (presence and availability crucial), cited with approval in Hadfield and Wilkinson; United States v. Hager, 969 F.2d 883, 889 (10th Cir.) (following Hadfield), cert. denied, — U.S. —, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992); United States v. Torres-Medina, 935 F.2d 1047, 1049-50 (9th Cir.1991) (availability sufficient); United States v. Boyd, 885 F.2d 246, 250 (5th Cir.1989) (“It is enough that the firearm was present at the drug-trafficking scene, that the weapon could have been used to protect or facilitate the operation, and that the presence of the weapon was in some way connected with the drug trafficking“), cited with approval in Hadfield and Wilkinson; United States v. Acosta-Cazares, 878 F.2d 945, 952 (6th Cir.) (“We hold that ‘uses’ and ‘carries’ should be construed broadly to cover the gamut of situations where drug traffickers have ready access to weapons with which they secure or enforce their transactions“), cited with approval in Hadfield, cert. denied, 493 U.S. 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989). But see United States v. Robinson, 997 F.2d 884 (D.C.Cir.1993); United States v. Derr, 990 F.2d 1330 (D.C.Cir.1993).
There is, of course, a difference between a large quantity of cocaine with a “fortress” of guns, and a $20 dealer with two grams of cocaine and an unloaded shotgun, but it is a
Alternatively, defendant seeks a new trial. We have examined his several contentions with care, but they require little comment. Defendant‘s complaints as to the charge, and to the weight of the evidence, are in accord with his claims on the acquittal, and must fail equally. The court‘s adjustments and failure to adjust the sentence on Count One were, routinely, within its discretion.
A word as to the dissent. We share in approving the flexibility of the Sentencing Guidelines, but we see no give, and no surrender, in this monolith of a statute, on the books for many years and not disturbed when the Guidelines were enacted. Moreover, how does one measure for this? And in what way do our differing facts, on a case by case basis, indicate that we are taking a new approach? Only one gun? Possible lack of title? No ammunition?3 Lack of exhibiting? No instant access? Under our cases none of these failures is fatal. The reason for this is that the difference between mere possession and use is in the mind of the user. United States v. Payero, 888 F.2d 928, 929 (1st Cir.1989) (possession lending courage is use); Wilkinson, 926 F.2d at 25 (“emboldening,” quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985)); United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.1992), cert. denied sub nom Sarraff v. United States, — U.S. —, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993) (possession with “intent to have it available for possible use“); Wilkinson at 26 (“intended the guns for protection“).
Was the stash too small to make intent more than a theoretical possibility? Even without defendant‘s admission, “It‘s good protection for anyone in the neighborhood to have a gun in their house also because people get robbed,” we cannot think that $360 in drugs plus $510 in cash, would not warrant a jury‘s finding that defendant‘s thinking included the gun. The statute does not measure the crime. In light of the accounts we read daily of mayhem over trifles, we adopt what we said in Wilkinson, (and remembering what Wilkinson itself said was “help“), “[U]ltimately, whether or not the gun[] helped appellant commit the drug crime is a matter for a jury, applying common-sense theories of human nature and causation.” 926 F.2d at 26. This is not to say that it need “automatically” find it. Nor is it to say that we like the inflexibility of this statute, or the judgment of the United States Attorney in invoking it for such a minor defendant.
The case is remanded to the district court to vacate the acquittal; reinstate the verdict of guilty on Count Two; to sentence on Count Two, and to readjust the sentence on Count One appropriately.
BREYER, Chief Judge (dissenting).
The narrow legal question before this panel is not whether possession of a gun (“in relation to the [drug] crime“) means a longer sentence for a convicted drug dealer. It most certainly does. Nor is the question whether the “possession” here was “in relation to” the drug crime, ante at 464-65. It was. Rather, the question concerns which sentencing statute governs the precise length of the extra term of punishment, a blunt “mandatory minimum” gun “use” statute,
The answer to this question turns on the meaning of a single word in the “mandatory minimum” statute, the word “use.” Does that word “use” include simple “possession” of a gun “connected with” a drug crime? If so, the majority is right, for I have no doubt that the jury here could find both a “posses-
Let me be more specific. The special “mandatory minimum” sentencing statute says that anyone who “uses or carries” a gun “during and in relation to any . . . drug trafficking crime” must receive a mandatory five-year prison term added on to his drug crime sentence.
Courts might have simplified the matter by answering this question in the negative. They might have reasoned that, at least in drug possession cases, virtually any possession of a gun amounts to “use” within the meaning of
Traditional tools of statutory interpretation support the near-universal judicial effort to maintain the distinction between (drug-related) “use” and “possession.” First, the ordinary meanings of the words “use” and “carry“—the language in the “mandatory minimum” statute—connote activity beyond simple possession. Cf. Smith v. United States, — U.S. —, —, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993) (the term “use” is to be given its “ordinary or natural meaning” in construing
Most importantly, courts normally try to read language in different, but related, statutes, so as best to reconcile those statutes, in light of their purposes and of common sense. In this instance, one relevant statute, the statute creating the Sentencing Guidelines, reflects a major congressional effort to create a fairly sophisticated Sentencing Guidelines system that distinguishes among different
I confess that it is easier to see the need to distinguish (drug-crime-related) “use” from “possession” than it is to explain just how to make the distinction. Courts might have interpreted “use” by insisting upon activity with the gun, such as firing it or brandishing it, or, at least, displaying it (or even trading it for drugs, see Smith, supra). But they have not done this. Rather, they have held that the word “use” sometimes encompasses more passive activity, such as “possession,” but sometimes it does not. Thus, we must try to articulate the distinguishing line they have drawn.
As I read the case law, when courts have held that “use” encompasses “possession,” they have always found (1) possession, (2) in connection with a drug crime, and (3) something more. See United States v. Wilson, 884 F.2d 174, 177 (5th Cir.1989) (except in “drug fortress” cases involving large amounts of drugs and money, “something more than strategic proximity of drugs and firearms is necessary to honor Congress’ concerns.“). And, they have tended to describe this “something more” as possession of the guns for protection of the drugs, thereby “facilitat[ing]” the drug crime. See, e.g., United States v. Wilkinson, 926 F.2d 22, 26 (1st Cir.) (conviction sustained where circumstances allowed jury to find that defendant “intended the guns for protection“), cert. denied, — U.S. —, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991); United States v. Hadfield, 918 F.2d 987, 998 (1st Cir.1990) (conviction sustained “so long as one purpose in situating the weapon nearby was to protect the narcotics enterprise“), cert. denied, — U.S. —, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991); United States v. Payero, 888 F.2d 928, 929 (1st Cir.1989) (conviction possible where firearm gave defendant courage by allowing him to protect himself); United States v. Bruce, 939 F.2d 1053, 1055 (D.C.Cir.1991) (guns may be “used” in relation to a possession crime “because they are intended to protect the stash of drugs that will subsequently be distributed“); ante at 465 (“mere presence of arms for the protection of drugs for sale is present use“) (emphasis added).
Of course, language such as “possession for protection” would not help the problem very much if that language itself were broadly interpreted or applied. If, for example, courts simply said that possession of a gun when drugs are around means a fortiori that the gun is present “for protection” of the drugs, the mandatory minimum statute‘s word “use” would (once again) swallow up the Guideline and eradicate the distinction between “use” and “possession” that courts have tried to maintain. It is therefore not surprising that the courts have not interpreted or applied this language broadly. They have avoided the “swallowing up” result by applying the “possession for protection” concept only where circumstances demonstrate that a drug offender, possessing a gun (in connection with the crime), would likely put the gun to active use (such as firing or brandishing it, or at least displaying it in an effort to intimidate) were the need to arise. In determining whether this later, active use is likely (i.e., in separating a theoretical possibility from a real risk), courts have looked at such factors as the gun‘s accessibility, whether it is loaded, the amount of drugs possessed, the presence of other guns, and the extent to which dangerous transactions likely take place nearby, as a way of deciding whether the “circumstances of the case show” that the gun was present for protection. United States v. Plummer, 964 F.2d
Examined in light of the case law‘s possession/use distinction, the record before us indicates that this drug offender‘s “possession” of the gun, even if related to the drug crime, does not rise to the level of a “use.” The defendant here was a small-time drug dealer, selling drugs in $20 packages. The police found a shotgun, unloaded, wrapped in a cloth bag, hidden between his bed‘s mattress and its box spring (but next to $40 the police had paid him, and above a strongbox on the floor containing two grams of cocaine and $510 cash). They found no ammunition anywhere in the apartment. The defendant testified, without contradiction and consistently with an earlier government affidavit, that the gun belonged to someone else. The gun was not visible, so its mere presence could not automatically have frightened a buyer or intruder. The defendant did not brandish, display, touch, or mention the gun during the transaction with police, nor was there any evidence that he had ever done so during the time he possessed drugs. To make active use of the gun in protecting his drugs or intimidating a buyer or intruder, he would have had to lift the mattress, seize the gun, and unwrap it. To fire the gun, the defendant would have had to find ammunition, bring it to the apartment, and load the gun. The small amount of cocaine possessed makes it somewhat less likely that, in fact, he had (or would have) done either. In context, the defendant‘s “admission,” ante at 466, does not seem particularly relevant.
Of course, one cannot exclude the possibility that any gun that is present, the way this gun was present, might be put to active “use.” But that is so virtually whenever a gun is present near the scene of a drug crime. To find a “possession for protection” (i.e., a “use“) here is, in effect, to find that possession of a gun (when related to a drug crime) automatically means a “use.” It thereby erases the line that the statutes, and the courts, have tried to draw, and again allows the “use” statute to swallow up the “possession” Guideline.
A brief review of these cases indicates rather strong support for the distinction I am drawing. Consider cases in which courts have permitted a jury to infer that a defendant “used” nearby guns to “protect” a stash of drugs. They involve drug-related risks of actually firing or brandishing (or “carry[ing]“) the gun that are significantly greater than the risks present here. In this circuit‘s Hadfield case, for example, the inference—that the defendant “used” the guns to “protect” the drugs—was neither uncertain nor theoretical: it was inescapable. The defendants ran a massive drug operation from a barn that contained hundreds of marijuana plants, thousands of dollars in cash, and several guns, at least two of which were loaded, standing on a nearby gun rack or hanging on the barn walls. A sign near the barn said, “This house guarded by shotgun three nights per week. You guess which three.” 918 F.2d at 991. A clearer case of using guns for protection is hard to imagine.
Our Wilkinson case, although closer, presented a somewhat different legal question. There, the defendant “carr[ied]” with him to a friend‘s house a duffel bag that contained two loaded guns (wrapped in a towel) and a cache of drugs (although the Wilkinson opinion is silent on the point, the record indicates that the guns were loaded). The proximity of loaded guns to the drugs and the fact that the defendant was carrying them together from place to place permitted the jury to infer that the defendant “intended the guns for protection,” and thus that he carried them “in relation to” his drug crime. Id. at 25-26. (Since Wilkinson involved the statutory terms “carry” and “in relation to,” strictly speaking it did not raise the “use/possession” problem here discussed.)
Similarly, other cases allowing an inference of presence “for protection” have involved close proximity and loaded guns, or large drug operations, or multiple weapons, or easy accessibility, or some factor suggesting more than a theoretical possibility that the guns might be used to protect the drugs if necessary. See, e.g., Castro-Lara, 970 F.2d at 983 (gun was “near a large sum of cash, in
Consider, by way of contrast, cases in which courts have refused to permit the jury to infer that the defendant “used” nearby guns to protect a stash of drugs. Many seem to involve risks of firing or brandishing (or displaying) a gun at least as great as those present here; in some, the risk seems greater. In United States v. Robinson, the D.C. Circuit refused to permit a “used for protection” inference where a defendant kept an unloaded pistol and drugs in a locked footlocker in a closet (the footlocker, in contrast with Wilkinson, apparently was not “carried” from place to place). 997 F.2d at 887-88. In United States v. Sullivan, 919 F.2d 1403 (10th Cir.1990), even though defendant kept an unregistered gun in her home where she also maintained a drug laboratory (and was convicted for possession of an unregistered firearm), the court refused to permit the “protection” inference because no additional evidence supported an intent to use the weapon in that way with respect to the drug operation. Id. at 1432 & n. 45. In United States v. Derr, 990 F.2d 1330 (D.C.Cir.1993), the court would not permit the inference where the defendant kept an unloaded pistol and his drug supply in a locked closet. See also, e.g., United States v. Matthews, 942 F.2d 779, 783-84 (10th Cir.1991) (reversing
Of course, one might simply argue that these cases are not all consistent with each other. However, whether or not that is so seems to me beside the point. The division in the case law indicates a perceived need to draw a legal line between simple possession of a gun and its use. In order to draw that line, one must say that at some point, the risk that a defendant will actually fire or brandish or display a nearby gun “to protect” a drug stash becomes too small to permit the jury to infer an intent to protect. Our previ-
For these reasons, I would affirm the decision of the district court.
Nos. 93-1824, 93-1835.
United States Court of Appeals, First Circuit.
Heard Nov. 5, 1993.
Decided Jan. 18, 1994.