United States v. Sullivan

TACHA, Circuit Judge,

dissenting.

I respectfully dissent from the majority on Part IX.C.2 regarding the sufficiency of the evidence to support the conviction of Mary Sullivan under Count 4 of the indictment, which charges “knowingly and unlawfully us[ing] or carrying] firearms during the commission of a felony” in violation of 18 U.S.C. § 924 (c)(1). Evaluated in the light most favorable to the government, the evidence is sufficient to allow a reasonable jury to conclude Mary Sullivan is guilty beyond a reasonable doubt of violating section 924(c)(1).

In reviewing the sufficiency of the evidence on which the jury conviction rests, we must evaluate the evidence — both direct and circumstantial — in the light most favorable to the government. United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987); United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir.), cert. denied, 475 U.S. 1128 , 106 S.Ct. 1657 , 90 L.Ed.2d 199 (1986). All reasonable inferences and credibility choices must be made in favor of the jury verdict. United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982). The evidence need not exclude every reasonable hypothesis other than guilt; it simply must be sufficient for a reasonable jury to find the defendant guilty beyond a reasonable doubt. Culpepper, 834 F.2d at 881 .

Our legal standard for determining whether a criminal defendant “uses” a fire *1438 arm “during and in relation to” a drug trafficking offense is set forth in United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989). There, we explained section 924(c)(1) is satisfied when: (1) the defendant has “ready access” to the firearm, and (2) the firearm “was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed.” Id. at 675 (quoting United States v. Matra, 841 F.2d 837, 843 (8th Cir.1988)).

In McKinnell , we discussed with approval the decisions of other circuits interpreting the “use” element of section 924(c)(1). 888 F.2d at 674 . One of these cases, United States v. Robinson, 857 F.2d 1006 (5th Cir.1988), is almost identical to our present case. In Robinson , the officers found a total of seven firearms in Robinson’s house. Id. at 1010 . They even found one pistol hidden in a boot in the laundry room. Id. at 1007 . In response to Robinson’s claim he did not own these weapons, the court emphasized that “ownership is not essential to possession, which in certain circumstances can constitute use within the meaning of 924(c)(1).” Id. at 1010 . The court held the evidence of the weapons found in the house was sufficient to sustain the conviction because a jury could reasonably conclude that Robinson’s possession of firearms was an integral part of the felony and Robinson “used” at least one weapon as a means of safeguarding and facilitating the illegal transactions. Id.

In United States v. Meggett, 875 F.2d 24, 25 (2d Cir.), cert. denied sub nom. United States v. Bradley, — U.S.-, 110 S.Ct. 166 , 107 L.Ed.2d 123 (1989), another case we approved in McKinnell , the police found five firearms in various places throughout defendant Bradley’s apartment. Bradley admitted the weapons were his, but he claimed they were part of a “gun collection.” Id. at 26. In holding the evidence was sufficient, the circuit court noted a jury could reasonably conclude the weapons in the apartment were on hand to protect that apartment as a storage and processing point for the narcotics. Id. at 29. The court held the evidence was sufficient even though Bradley was not at home when the police raid occurred. Id. at 25, 29. The court considered the jury’s conclusion reasonable based on the evidence, holding it did not matter that the weapons were in Bradley’s apartment and not at the scene of distribution where he was arrested. Id. at 29.

Finally, in United States v. Matra, 841 F.2d 837, 839 (8th Cir.1988), officers found eight weapons on both the first and second floors of the house where Matra was arrested. One submachine gun was stashed under a waterbed in the center upstairs bedroom, which was locked when the police arrived. Id. Although none of the weapons were in Matra’s actual possession, the district court ruled the machine gun was present and available to Matra because he possessed a key to the center bedroom. Id. at 842-43 . The district court also found the weapons were kept ready to protect a drug house, thereby safeguarding and facilitating the illegal operation. Id. at 842 . The circuit court upheld the factual findings of the district court, holding the evidence in the record was sufficient to support the district court’s determination that Matra “used” the machine gun as section 924(c)(1) requires. Id. at 843 . The court noted that “[i]n these circumstances, it would defy both logic and common sense to conclude that Matra did not ‘use’ the machine gun within the meaning of § 924(c).” Id.

There are numerous other cases we did not include in our opinion in McKinnell that convince me it would “defy both logic and common sense” to conclude Mary Sullivan did not “use” at least one of the many firearms found in her house. For example, in United States v. LaGuardia, 774 F.2d 317, 318 (8th Cir.1985), the officers found two pistols in LaGuardia’s house and one in the trunk of his car parked outside. Noting that “[wjeapons can be used for protection or intimidation and therefore facilitation of illegal transactions,” the court held this evidence was sufficient for a reasonable jury to convict the defendant. Id. at 321 (citing United States v. Mason, 658 F.2d 1263, 1271 (9th Cir.1981)). As the court explained, the weapons had “un *1439 doubted utility in protection of the valuable supply [of cocaine] on hand.” LaGuardia, 774 F.2d at 321 . Further, it stated the “presence and availability in light of the evident need demonstrates the use of the firearm to commit the felony.” Id.

Another recent example of a case in which the evidence of firearms was sufficient to satisfy the “use” element of section 924(c)(1) is United States v. Boyd, 885 F.2d 246, 249 (5th Cir.1989). In Boyd the court held the evidence of a shotgun in a warehouse office was sufficient for a reasonable jury to conclude section 924(c)(1) was satisfied even though the gun was broken open and could not be used until it was closed. Id. at 250 . The court in Boyd noted, “[i]t 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.” Id. (citing Robinson, 857 F.2d at 375 ). Similarly, in United States v. Alvarado, 882 F.2d 645, 654 (2d Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1114 , 107 L.Ed.2d 1021 (1990), the court held three guns found in various locations in Alvarado’s apartment were sufficient evidence for a reasonable jury to convict her of three counts of violating section 924(c)(1). The court also found the discovery of two other guns was “ample” evidence to uphold two further counts even though those two guns were locked in a safe in a walk-in closet. Id.

Turning to the evidence of firearms discovered in the present case, the record shows Mary Sullivan “used” a firearm within the meaning of section 924(c)(1). McKinnell first requires the defendant have “ready access” to a firearm. 888 F.2d at 675 . I am convinced there is sufficient evidence for a reasonable jury to conclude Mary Sullivan had ready access to a firearm. At trial Steve Howell testified he took his mother’s gun from his father’s Blazer, carried it into Mary Sullivan’s house, and left it there. XI at 600-01. Mary Sullivan herself testified that Howell gave this gun to her son, Steve Brown. XVII at 2086. She also testified her son placed this gun on her piano. Id. Howell testified an AR-15 with a sears clip attached was sitting on the kitchen table in Mary Sullivan’s house on Monday night, the night before she was arrested. XI at 601-03; XVII at 2087. Mary Sullivan testified the arresting officers entered while she was shelling peas in the kitchen, and they confiscated all the weapons in the house. Id. at 2088. With a gun sitting on her piano, another on the kitchen table, and all the other firearms in the house, Mary Sullivan clearly had ready access to a firearm. Her ready access to a firearm is even more certain when the position of these weapons in relation to Mary is compared with the situations discussed above.

McKinnell also requires the evidence be sufficient for a jury to reasonably conclude the firearm was an “integral part” of the criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed. 888 F.2d at 675 . I am convinced of the reasonableness of the jury’s determination that the use of firearms contributed to the drug trafficking operation. Mary Sullivan knew the guns were present in the house. XVII at 2088. She also was home when Russell Sullivan demonstrated how the sears clip fit on the AR-15. Id. at 2086-88; XI at 601-03. The weapons could have been used for protection or intimidation, thereby facilitating the drug conspiracy operating from her house. The weapons had undoubted utility in safeguarding the operation. I cannot conclude there was insufficient evidence of a connection between the firearms and the drug offenses. Based on the testimony of Steve Howell and Mary Sullivan, I would hold the evidence of “use” of the firearms was sufficient to sustain Mary Sullivan’s conviction under section 924(c)(1).

In my view, Mary Sullivan’s statement that all the guns the officers found in her house were part of a “gun collection” belonging to her son James Wesley is immaterial to our review. I fail to understand why her claim that these firearms belong to her son — if at all true — is relevant to determining the reasonableness of a finding she “used” the guns. The test for “use” in McKinnell is an inquiry about *1440 availability, not ownership, of firearms. See Robinson, 857 F.2d at 1010 . The evidence supporting a possession of firearms charge may include a showing of indicia of ownership. A charge of using firearms, however, is fact-specific. It requires an inquiry into facts about the availability of the guns and their possible use for protection and intimidation. Ready access is clearly a factual determination, not a legal standard. We merely review the record to determine whether there is some evidence to support factual determinations already made by the jury.

The jury apparently rejected the credibility of Mary Sullivan’s testimony on the gun collection point by convicting her of one count of firearm “use” under section 924(c)(1). See Meggett, 875 F.2d at 26, 29 . Rather than reevaluating the credibility of Mary Sullivan’s testimony, we must consider the evidence in the light most favorable to the verdict and resolve all credibility choices in the government’s favor. Applying this standard of review, I would hold the evidence is sufficient for a jury to conclude beyond a reasonable doubt that Mary Sullivan “used” a firearm within the meaning of section 924(c)(1).