Opinion
CR. 2001-30061-02
August 27, 2001
Randolph J. Seiler, U.S. Attorney's Office, Pierre, S.D. Attorney for Plaintiff.
Tara L. Adamski, Adamski Brugger, Pierre, S.D. Attorney for Defendant.
REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT'S MOTION TO DISMISS
I.
Defendant, Jacqueline Christina Clairmont, filed a Motion to Dismiss and supporting Memorandum on July 24, 2001, Docket No. 29. On August 8, 2001, plaintiff, United States of America, (government) filed a formal response to the Dismissal Motion, Docket No. 34. Because Clairmont's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.
II.
Clairmont is charged with one count of using or carrying a firearm during a crime of violence, or in the alternative, aiding and abetting the same, in violation of 18 U.S.C. § 924(c) and 2. She has pled not guilty to the offense and is currently out on bond (on a third-party custody basis) pending trial.
In her Motion, Clairmont seeks a dismissal of the charge based on insufficiency of the evidence. Specifically, she argues that the government cannot prove beyond a reasonable doubt that she carried and/or used a firearm "during and in relation to" a crime of violence because "she did not use or avail herself of the weapon". Docket No. 29 at 1. She also argues that she cannot be convicted of a firearm offense because she was not present when the violent crimes alleged actually occurred. Id.
In the alternative, Clairmont claims that the § 924(c) offense, as it pertains to her, is defectively charged and should be dismissed. The gravamen is her claim is that she is charged "only with the enhancement and not with a predicate crime for the enhancement". Id. at 2.
After careful review of the evidence of record and relevant precedent, the Court concludes that Clairmont's Motion should be DENIED in all respects, as explained in more detail below.
In passing on Clairmont's Motion, the Court has considered the statements she made to FBI agents on June 6, 2001 which were produced by counsel for Duane Two Eagle, the co-defendant, in accordance with an order that was entered in response to Two Eagle's Motion for Severance, see Docket Nos. 26, 32, 36.
III.
Insofar as pertinent here, § 924(c) requires the imposition of specified penalties if a defendant "during and in relation to any crime of violence, uses or carries a firearm." By its terms, the statute requires the prosecution to make two showings. First, it must demonstrate that the defendant "use[d] or carrie[d] a firearm." Second, it must prove that the use or carrying was "during and in relation to" a crime of violence. Smith v. United States, 508 U.S. 223, 227-28 (1993); see also, United States v. Barry, 98 F.3d 373, 377-78 (8th Cir. 1996), cert. denied, 519 U.S. 1140 (1997).
The Supreme Court has held that the phrase "carries a firearm" applies to a defendant who knowingly possesses and conveys a firearm in a vehicle which he accompanies. Muscarello v. United States, 524 U.S. 125, 127-39 (1998). Thus, § 924(c) applies not only when the defendant bears a firearm, i.e., carries the weapon on or about his person, but also, when he personally transports, possesses, or keeps a firearm anyplace in his vehicle. Id; see also, United States v. Turner, 157 F.3d 552, 556-57 (8th Cir. 1998); Bradshaw v. United States, 153 F.3d 704, 706-07 (8th Cir. 1998).
Prior to Muscallero, the Eighth Circuit had already determined that transporting a firearm in a vehicle satisfied the "carry" prong of § 924(c). See United States v. Willis, 89 F.3d 1371, 1378 (8th Cir.), cert. denied, 519 U.S. 909(1996).
The phrase "in relation to" is expansive but not without boundaries. Smith, 508 U.S. at 237. At a minimum, the firearm at issue must "have some purpose or effect with respect to the crime; its presence or involvement cannot be the result of accident or coincidence." Id. at 238. The "in relation to" language contemplates that "the gun at least must `facilitat[e] or ha[ve] the potential of facilitating,' the [violent] offense." Id; see also, United States v. Damm, 133 F.3d 636, 639 (8th Cir.) cert. denied, 523 U.S. 1101 (1998).
Clairmont is charged with being a principal or in the alternative, as an aider and abettor, under § 924(c). The Eighth Circuit has made it clear that a defendant may be found guilty of a § 924 offense as an aider and abettor. Barrett v. United States, 120 F.3d 900, 901 (8th Cir. 1997); United States v. Simpson, 979 F.2d 1282, 1284-86 (8th Cir. 1992), cert. denied, 507 U.S. 943 (1993); see also, United States v. Davis, 154 F.3d 772, 782-84 (8th Cir. 1998) (a defendant may be held liable under § 924(c) for the acts of others, even without actual knowledge, but the government must prove that the use or carrying of the firearm was reasonably foreseeable in furtherance of the crime of violence or drug trafficking offense), cert. denied, 525 U.S. 1151 (1999). The Court has also recognized that a defendant who did not personally use or carry a firearm may nonetheless be convicted of violating § 924(c) even after Bailey v. United States, 516 U.S. 137 (1995). Barrett, 120 F.3d at 901.
The aider and abettor statute, 18 U.S.C. § 2, provides that "one who aids, abets, counsels, commands, induces or procures", an offense against the United States "is punishable as a principal". This statute does not create a separate crime, instead, it makes the listed actions a primary violation of another, specific crime. Simpson, 979 F.2d at 1285. Under § 2, the principal's acts become those of the aider and abettor as a matter of law. Pereira v. United States, 347 U.S. 1, 8-11 (1954); see also, Nye Nissen v. United States, 336 U.S. 613, 620 (1949) ("aiding and abetting . . . states a rule of criminal responsibility for acts which one assists another in performing").
Applying these precepts to the instant case, the Court is easily able to find and conclude that there is sufficient evidence to enable the government to go forward with its prosecution of Clairmont on the firearms charge. Two Eagle is charged with eight crimes of violence that revolve around him shooting and seriously injuring four people.
There can be no question that the assault offenses Two Eagle is charged with are crimes of violence under 18 U.S.C. § 924(c)(3).
Clairmont was requested by Two Eagle to get him the rifle that he ultimately used to shoot the four alleged victims and to obtain ammunition for the same. She personally possessed and transported the rifle and gave it to Two Eagle at or near the crime scene and then drove him away, while he was still armed, within minutes after the shooting occurred. Under these circumstances, Clairmont "carried a firearm in relation to a crime of violence" within the meaning of § 924(c), or at the very least, aided and abetted Two Eagle in the violation of this statute. Whether Clairmont had the requisite knowledge and/or criminal intent to be convicted is, of course, for a jury to decide at trial.
IV.
Contrary to her claim, the § 924(c) offense Clairmont is charged with, is a separate offense and not an enhancement. Castillo v. United States, 530 U.S. 120, 123-31 (2000); United States v. Carlson, 217 F.3d 986, 987-89 (8th Cir. 2000); cert. denied, 121 SCt 822 (2001); see also, Eighth Circuit Manual of Jury Instructions (Criminal] § 6.18.924(C) at 223 (2000). This being the case, Clairmont's defectiveness claim must fail.
V.
Based on the foregoing, it is accordingly
RECOMMENDED that defendant's Motion to Dismiss, Docket No. 29, be DISMISSED in its entirety and with prejudice.
ORDER
Defendant Clairmont filed a motion to dismiss count IX of the indictment which motion included a supporting memorandum (Doc. 29). US Magistrate Judge Moreno examined the FBI 302 as to statements allegedly made by Clairmont and served a report and recommendation for disposition of Clairmont's motion (Doc. 38). The Court has conducted a de novo review of the FBI 302 and all the files and records herein. Clairmont has filed objections (Doc.42) to the recommendation of the magistrate and the objections have been considered.
Clairmont made a number of inconsistent statements, according to the form 302. Some of those statements, if believed by the jury, would be sufficient to allow a jury to find Clairmont guilty of carrying a firearm in relation to a crime of violence or aiding and abetting the same. The objections should be overruled, the motion denied and the report and recommendation accepted. Now, therefore,
IT IS ORDERED that the motion to dismiss (Doc. 29) is hereby denied.
IT IS FURTHER ORDERED that the objections (Doc.42) should be and are hereby overruled and the report and recommendation (Doc. 38) should be and is hereby adopted.