Opinion
CV-97-2150
July 25, 1997
MEMORANDUM AND ORDER
Following a two day jury trial, Timothy Williams was found guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841; possession of firearms with defaced serial numbers in violation of 18 U.S.C. § 922(k); using and carrying firearms in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and possession of firearms after being convicted of a felony in violation of 18 U.S.C. § 922(g)(1). He was sentenced on November 5, 1993 to a term of imprisonment of 240 months for violations of 21 U.S.C. § 841; 60 months for violations of 18 U.S.C. § 922(k) and 18 U.S.C. § 922(g)(1), to be served concurrently with the sentence of 240 months, and 60 months for violation of 18 U.S.C. § 924(c)(1), to be served consecutively as required by statute. To the term of imprisonment was added a ten year period of supervised release and a special assessment of $200.
He appealed his conviction and sentence asserting that inculpatory statements he made upon arrest and thereafter should have been suppressed; insufficiency of evidence to support his conviction for violation 18 U.S.C. § 922(k) and that the charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) should have been severed. On October 6, 1994, the Court of Appeals affirmed his conviction and sentence in a summary order which noted "that the evidence at trial was so substantial that Williams could not have been prejudiced by the joinder of the ex-felon count."
Williams has filed a petition pursuant to 28 U.S.C. § 2255 seeking an order to vacate, set aside, or correct his sentence contending that (1) his conviction for using and carrying a firearm in connection with a drug offense in violation of 18 U.S.C. § 924(c)(1) should be vacated in the light of Bailey v. United States, ___ U.S ___, 116 S.Ct. 501(1995); (2) he should be granted a new trial on the remaining three counts; (3) the prior felony information increasing the statutory minimum sentence on the drug count was invalid; and (4) his trial counsel's failure to challenge the "no-knock" provision of the search warrant rendered his assistance ineffective. He also contends that should he be resentenced, the guideline for cocaine powder and not cocaine base should be used.
Background
A "no-knock" warrant to search the petitioner's apartment was issued by a judge of the New York Criminal Court which was executed by officers of the New York Housing Authority Police Department. Upon entering the apartment, its occupants were placed in custody. Williams was removed to the hallway and shortly thereafter, his wife was brought into the hallway. When one of the officers searching the apartment announced that contraband was found there, Williams told the officer guarding him that what was found there was his and that his wife had no knowledge of it.
A search of the apartment yielded a loaded Mossberg 12-gauge shotgun next to the bed, a loaded Glock .9 mm semi-automatic pistol and a loaded Davis .380 caliber pistol underneath the mattress; a loaded Ruger .22 caliber pistol in the night stand next to the bed, and a loaded Raven Arms .25 caliber semi-automatic pistol in a dresser drawer, all in the master bedroom. Next to the Raven Arms gun was a bag containing cocaine. Also in that bedroom were a triple-beam scale and a bullet-proof vest behind the headboard of the bed. In other parts of the apartment were three bags of crack vials, crack cocaine and strainers on which were a white residue. Testimony established that the Glock pistol was manufactured in Austria and that its serial number was obliterated; that the Mossberg shotgun was manufactured in Connecticut and that its serial number was also obliterated. A stipulation by the parties acknowledging Williams' prior felony conviction was received and read to the jury with the cautionary instruction that it was relevant only to the § 922(g)(1) charge. The court's charge to the jury on the § 924(c)(1) charge, although in accordance with the then recognized law of this Circuit was subsequently rendered erroneous by Bailey, supra, which decided that "using" a firearm within the meaning of the statute must be understood to mean actively employing the gun in connection with the underlying drug offense. The guns found in the apartment were not "used" as that term was defined by Bailey and a conviction predicated upon that prong of the statute was erroneously obtained and must be set aside.
In relevant part, 18 U.S.C. § 924(c)(1) penalizes a person who "during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm." Although deciding that proximity and accessibility of a firearm to drugs is alone not enough to support a conviction for "use" of a firearm under § 924(c)(1), the Court wrote that "[t]he `carry' prong of § 924(c)(1), . . . brings some offenders who would not satisfy the `use' prong within the reach of the statute." 116 S.Ct. at 509. The reach of the word "carry" raises a question not easily answered given two segments of the Court's opinion. In observing that "a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction," 116 S. Ct. at 507, one might reasonably conclude that "carry" is meant to be restricted to presence upon the person of the defendant. The concluding paragraphs of the opinion, however, read as follows:
The police stopped Bailey for a traffic offense and arrested him after finding cocaine in the driver's compartment of his car. The police then found a firearm inside a bag in the locked car trunk. There was no evidence that Bailey actively employed the firearm in any way. In Robinson's case, the unloaded, holstered firearm that provided the basis for her § 924(c)(1) conviction was found locked in a footlocker in a bedroom closet. No evidence showed that Robinson had actively employed the firearm. We reverse both judgments.
Bailey and Robinson were each arraigned under both the "use" and "carry" prongs of § 924(c)(1). Because the Court of Appeals did not consider liability under the "carry" prong of § 924(c)(1) for Bailey or Robinson. we remand for consideration of that basis for upholding the conviction.116 S.Ct. at 509 (emphasis added).
From that language, one might conclude that the Court did not foreclose a construction of "carry" as being restricted to presence upon one's person.
I forego the temptation to consider the growing volume of cases which require a determination of the applicability of "carry" to an almost infinite variety of fact patterns, in the light of the decisions in this Circuit which are dispositive and drive me to conclude that Williams' conviction on this count must be vacated and he must be returned for resentencing. See, e.g., United States v. Cruz-Rojas, 101 F.3d 283 (2d Cir. 1996); United States v. Santos, 84 F.3d 43 as modified on rehearing in 95 F.3d 116 (2d Cir. 1996).
See, for example, United States v. Cooke, 110 F.3d 1288 (7th Cir. 1997); United States v. Cleveland, 106 F.3d 1056 (1St Cir. 1997); United States v. Molina, 102 F.3d 928 (7th Cir. 1996); United States v. Anderson, 89 F.3d 1306 (6th Cir. 1996), cert. denied, 117 S.Ct. 786(1997); United States v. Giraldo, 80 F.3d 667 (2d Cir.), cert. denied, 117 S.Ct. 135(1996); United States v. Baker, 78 F.3d 1241 (7th Cir. 1996), cert. denied, 117 S.Ct. 1720(1997); United States v. Moore, 76 F.3d 111 (6th Cir. 1996); United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir.), cert. denied, 117 S.Ct. 136(1996); Medina v. United States, 1997 WL 45522 (S.D.N Y 1997); United States v. Morris, 929 F. Supp. 993 (S.D. Miss. 1996), aff'd, ___ F.3d ___ (5th Cir. 1997).
Williams contends that his conviction on the other counts must be vacated and a new trial afforded him for the reason that they were retroactively misjoined given the disposition of the § 924(c)(1) count. In United States v. Vebeliunas, 76 F.3d 1283 (2d Cir.), cert. denied, 117 S.Ct. 362(1996), the court held that three factors must be considered when a claim of retroactive misjoinder is asserted. Those factors are: (1) whether the evidence adduced to support the vacated count was so inflammatory that it would have incited the jury to convict on the other counts; (2) the evidence and facts pertaining to the dismissed count must be compared with those pertaining to the remaining counts to examine the extent of overlap and similarity between the two, and (3) a general assessment of the strength of the case against the defendant on the remaining counts. 76 F.3d at 1294. An examination of each of those factors in the context of this case compels the conclusion that there was no prejudicial spillover and no retroactive misjoinder. The evidence adduced to support the other counts of necessity embraced the facts relevant to the vacated count, namely, the possession of drugs, the possession of a gun as a prior felon and the possession of a gun with an obliterated serial number.
Williams' assertion that he was improperly sentenced by the application of the crack guidelines rather than the cocaine powder guideline is meritless. The testimony of ATF Agent Robert Berger and Williams' own post-arrest statements established beyond cavil that the offending controlled substance was indeed crack.
Williams' assertion that the prior felony information filed by the government pursuant to 21 U.S.C. § 851 was defective because the predicate offense was not prosecuted by indictment has no merit. Exhibits A, B and C annexed to the Government's Memorandum in Opposition to Williams' Petition ("Gov. Mem."), clearly establish that Williams waived indictment and pleaded guilty to a Class C felony in New York Supreme Court and that he was properly served with that information in accordance with § 851(a)(1) and (2).
Williams' further assertion that his counsel was ineffective in not challenging the validity of the "no-knock" warrants is similarly without merit. Exhibit D to Gov. Mem. provided the requisite justification for the issuance of that warrant pursuant to § 690.35(4)(b) of the N.Y.Cr.Pr.L. and an attack upon its validity would have been specious.
In accordance with the foregoing, the petitioner's conviction of 18 U.S. § 924(c) is hereby vacated, and the United States Attorney is directed to obtain his appearance in this court by the appropriate writ for resentencing and to advise the court of the date of his appearance.
SO ORDERED.