United States v. Terrence Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2737

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

T ERRENCE B ROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 CR 1009-2—Robert M. Dow, Jr., Judge.

A RGUED JULY 9, 2013—D ECIDED JULY 30, 2013

Before E ASTERBROOK, Chief Judge, and P OSNER and

W ILLIAMS, Circuit Judges.

P OSNER, Circuit Judge. A jury convicted the defendant

of having attempted to possess cocaine with the

intention of distributing it, 21 U.S.C. §§ 841(a)(1), 846,

and having “possesse[d]” a firearm “in furtherance of

any such crime,” 18 U.S.C. § 924(c)(1)(A); see United

States v. Castillo, 406 F.3d 806, 811-12 (7th Cir. 2005)—that

is, a drug crime. He was sentenced to 60 months

for the gun crime, the sentence to run consecutively to

2 No. 11-2737

a 175-month sentence for the drug crime. The appeal

challenges only the gun conviction.

The drug offense was an attempt to buy 10 kilo-

grams of cocaine from (unbeknownst to the defendant)

an undercover officer (so naturally the cocaine was

fake). The attempt is criminal though it could not have

led to the completed crime. United States v. Sobrilski, 127

F.3d 669, 674-75 (8th Cir. 1997); United States v. Everett,

700 F.2d 900, 904-08 (3d Cir. 1983); cf. United States v.

Stallworth, 656 F.3d 721, 728 (7th Cir. 2011). The trans-

action took place in the defendant’s SUV. The defendant,

who remained in the driver’s seat the entire time, passed

a bag of cash back to his accomplice, who had moved

from the first to the second row of seats to be next to

the undercover officer. The accomplice gave the bag of

money to the officer, who had placed the bag of fake

cocaine on the floor of the vehicle upon entering.

The officer left with the money. Other officers quickly

appeared and arrested the defendant and his ac-

complice before the defendant could drive off.

The defendant’s gun was found in a secret compart-

ment large enough to hold substantial amounts of drugs

and cash along with weapons, although the exact dimen-

sions are unclear. The compartment was under the

third row of seats. The gun, loaded and in working

order, was the only object in the compartment and the

compartment was closed.

Not only was the defendant at some distance from

the compartment when the transaction took place, but

the compartment could be opened only by following

No. 11-2737 3

a sequence of steps that would take about half a minute

to complete: start the car, press the defrost button, push

down the button to open a rear window, and place a

magnet close to the ignition. The hope was that this

involuted procedure for opening the compartment

would thwart police searches. Also the compartment

couldn’t be opened unless the second row of seats

was folded down and pushed forward—and remember

that the accomplice, and the undercover officer who

was posing as a seller, were sitting on those seats

during the transaction.

Obviously the gun was stored in the compartment to

facilitate the defendant’s drug dealing. No reasonable

jury would have believed the defendant’s testimony that

he had stored the gun there for personal self-defense

because he had been beaten up and in the wake of

that incident had placed the gun (which he already

owned) in the secret compartment to make him “feel

safe.” What a reasonable jury could and the jury in

this case doubtless did believe was that the compart-

ment was a good place in which to store a gun because

the defendant would be highly vulnerable when con-

ducting a transaction involving drugs or money kept in

the compartment. If he opened it to get money to buy

drugs from a would-be seller, the seller might be

tempted to grab all the money in the compartment and

flee without giving over the drugs he’d agreed to sell.

But section 924(c)(1)(A) does not punish possessing a

gun for the general purpose of mitigating dangers as

they arise in one’s career as a drug dealer; the posses-

4 No. 11-2737

sion must be in furtherance of a “drug trafficking crime,”

in this case the transaction with the undercover

agent—a criminal attempt to purchase cocaine and the

only drug crime mentioned. The defendant argues that

the gun couldn’t have furthered that transaction

because the compartment was never opened and

couldn’t have been unless the occupants of the second

row of seats had moved. Had the defendant doubted

the bona fides of the putative seller of the cocaine

(he testified he did not), he would have been likely, it

could be argued, either to have taken the gun out of

the compartment before the transaction took place or

conducted the transaction with the compartment open

and the gun therefore easier for him to get hold of

quickly if need be.

The statutory term “in furtherance of” is unavoidably

rather vague (“possesses” too, perhaps, though in this

case the defendant does not deny possessing the gun when

it was in the secret compartment), and the tendency of

the courts has been to list factors that seem relevant and

leave it to the trier of fact to apply them to the facts of

the case at hand. The canonical factors, first enumerated

in United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th

Cir. 2000), are “the type of drug activity that is being

conducted, accessibility of the firearm, the type of the

weapon, whether the weapon is stolen, the status of the

possession (legitimate or illegal), whether the gun is

loaded, proximity to drugs or drug profits, and the time

and circumstances under which the gun is found.” For

subsequent invocations of these factors see, e.g., United

States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005); United

No. 11-2737 5

States v. Walker, 657 F.3d 160, 172 (3d Cir. 2011); United

States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008);

United States v. Snow, 462 F.3d 55, 62 n. 6 (2d Cir. 2006).

Rightly, none of the factors is deemed decisive. A

lawfully purchased gun can be used in furtherance of a

drug crime. Even a gun that is unloaded or not in

working condition can be brandished, to intimidate

a participant in a drug deal; used in so “harmless” a

way the gun would still be facilitating a drug crime.

It’s also difficult to see why the type of gun matters or

what the relevance is of the difference between a

stolen weapon and one that while not stolen is

possessed illegally (maybe because the defendant is a

felon). And “accessibility,” “proximity,” and “circum-

stances” are all open-ended terms.

It can be easier to determine “furtherance” by a

holistic analysis than by dissecting the issue into parts;

and so we’ll eschew the conventional trudge through

factors and simply ask whether the defendant’s gun

facilitated the drug crime. It did, as the jury found.

True, the gun was not so easy to get to as it would

have been in an open compartment in the front row of the

SUV’s seats, or on his person; but he was trading grabbing

ease for a reduced risk that the police would find the

gun in a search of the vehicle. True too that he was

sitting in the driver’s seat rather than within reaching

distance of the compartment. But he had to be prepared

to make a quick getaway; so again he was trading

easy access to the gun for a reduced risk of being cap-

tured. These tradeoffs are like the tradeoff a person

makes who owns a gun for personal defense but locks

6 No. 11-2737

it in a safe in his home to prevent his children from

getting at it. That doesn’t mean the gun isn’t for his

personal defense. Likewise the tradeoffs our defendant

made did not render his possession of the gun irrelevant

to the drug transaction. If the purported seller of the

drugs acted up during it, the defendant might be able

to reach the gun in time to prevent serious trouble.

Indeed if the seller snatched the bag of money and

fled without giving the defendant’s accomplice the

drugs, the defendant might be able to grab the gun in

time to give chase to the seller and interrupt

his flight, whether by threat or shooting. Moreover, it

would have been easier for the defendant to grab the

gun had the undercover officer sat elsewhere than in

the second row of seats; the defendant hadn’t invited

him to sit there. And probably the defendant intended

after completion of the purchase of the drugs to place

them in the secret compartment in order to reduce the

likelihood that the police would find them or his accom-

plice steal them. The gun’s presence in the compart-

ment would further increase the security of the drugs.

The transaction was interrupted; and since the only

drug offense the defendant was convicted of was an

attempt to possess cocaine, it might seem that secreting

the drugs in the compartment could not have been in

furtherance of that crime. Not so; he may have been

emboldened to agree to the transaction by knowledge

that he had a secret place in which to store the drugs

and that a loaded gun in the place of storage made

them less likely to be snatched. If the presence of the gun

made it likelier that the defendant would attempt the

illegal drug purchase that turned out (the attempt, that

No. 11-2737 7

is) to be his undoing, his possession of the gun

facilitated the attempted sale. And so a reasonable

jury could find.

Speaking of “possession,” we note in closing, and with

approval, the parties’ agreement that the defendant

“possessed” the gun, which is another element of the

section 924(c)(1)(A) offense and of other gun offenses

(also drug offenses) as well, even though the gun was at

a distance from him.

The concept of possession in criminal cases has under-

gone considerable elaboration in recent years, as when

we read in a section 924(c) case decided by the District

of Columbia Circuit that “possession, of course, can be

either actual or constructive. Constructive possession

requires evidence supporting the conclusion that the

defendant had the ability to exercise knowing dominion

and control over the items in question. Mere proximity

to the item at the time of seizure is not enough; but prox-

imity coupled with evidence of some other factor . . . is

enough to sustain a guilty verdict.” United States v.

Morris, 977 F.2d 617, 619-20 (D.C. Cir. 1992) (citations and

quotation marks omitted). Similar formulas for attempting

to distinguish between “actual” and “constructive”

possession appear in countless 924(c)(1)(A) cases, see, e.g.,

United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009);

United States v. Perez, 663 F.3d 387, 392 (8th Cir. 2011);

United States v. King, 632 F.3d 646, 651-52 (10th Cir. 2011),

and in other gun (also drug) cases as well, such as cases

involving possession of firearms by felons. See, e.g., United

States v. Griffin, 684 F.3d 691, 695-97 (7th Cir. 2012).

8 No. 11-2737

The formulas do not, however, explain clearly the

difference between “actual” and “constructive” possession,

or the utility of drawing the distinction, or how “domin-

ion” (a word no longer in common usage) differs from

“control,” or what “knowing” dominion and control

means. A century ago the Supreme Court remarked that

“both in common speech and in legal terminology, there

is no word more ambiguous in its meaning than posses-

sion. It is interchangeably used to describe actual posses-

sion and constructive possession which often so shade

into one another that it is difficult to say where one

ends and the other begins.” National Safe Deposit Co. v.

Stead, 232 U.S. 58, 67 (1914). As aptly stated in Charles H.

Whitebread & Ronald Stevens, “Constructive Possession

in Narcotics Cases: To Have and Have Not,” 58 Va. L.

Rev. 751, 762 (1972), “the courts have lost sight of the

basic question of whether the defendant did in fact

possess the prohibited items and have applied the termi-

nology of constructive possession as if it were a talisman

to be used without reference to the interaction of the

particular facts of each case.” See also Wayne R. LaFave,

Criminal Law § 6.1(e), pp. 327-29 (5th ed. 2010).

We don’t deny the utility of the distinction—though

it would be clearer, certainly to a jury, if the terms

“actual possession” and “constructive possession” were

replaced by “custody” and “possession”—when the

physical possession is by the defendant’s agent, as in

the National Safe Deposit case, which involved the

storage of a person’s property in a safe-deposit box in a

bank. 232 U.S. at 68. As explained in United States v.

Rawlings, 341 F.3d 657, 658-59 (7th Cir. 2003), “ ‘Possession,’

No. 11-2737 9

a concept much elaborated since its introduction into

Western law by the Romans, has never just meant

clasping something in your hands. The owner of an

automobile possesses it even when it is parked in a

garage and he is miles away. A tenant possesses the

apartment he has rented even when he is away on a trip.

A thief has custody of the goods he steals, but the

owner retains possession. (That is, the thief does not

have the rights of a possessor; he still has the liabilities,

for example as a felon in possession . . . .) To decide

whether a person . . . possesses a gun, therefore, it is

not enough to ask whether the gun is in his hand or

his pocket or even under his pillow or in his desk

drawer. Had [the defendant] said to one of his

coconspirators—’You hold this gun that I’ve bought

but never touched, because I’m a felon and I don’t want

to be charged with being a felon in possession, if we

are caught’—this would not negate his possession of

it” (emphasis in original).

These are cases in which custody and possession are

divided (for the owner of the property would certainly

describe it as his possession), which strikes us, as we

said, as a clearer articulation of the distinction than

“actual” versus “constructive” possession. But neither

in the D.C. Circuit’s Morris case nor in the present case

is the distinction, however worded, necessary to draw.

Morris sold drugs in the living room of his small (one-

bedroom) apartment, and two loaded guns were found

under the cushions of the living room couch, where he

was sitting when police unexpectedly appeared and

arrested him. 977 F.2d at 619. Obviously the guns were

10 No. 11-2737

his possessions. He lived there by himself. (Compare

the discussion of the complications created by joint resi-

dence in United States v. Griffin, supra, 684 F.3d at 695-97.)

What could “constructive” as distinct from “actual”

possession of the contents of one’s own apartment mean

when no one else resides in or even has access to the

apartment? When sitting on his couch was Morris

merely in “constructive” possession of it? If so does

that mean that a couch can’t be “actually” possessed,

except maybe by moving men? Does one “actually pos-

sess” a gun only when one is holding it in one’s hand?

Does one lose possession of one’s home when one

is commuting to work?

Much as in Morris, our defendant’s gun was found in

his SUV (corresponding to Morris’s small apartment),

which he was sitting in. He possessed it, along with

the other contents of the car (such as the items in his

glove compartment and trunk), even though the gun

was several feet away from him (though closer than

the items in his trunk) and it would have taken him a

half minute or so to grab hold of it. Once one

recognizes that “possession” is not limited to holding

something in one’s hand, the occasions for invoking

the term “constructive possession” diminish, as the

parties in this case sensibly recognize.

A FFIRMED.

7-30-13