NO ORAL ARGUMENT HAS YET BEEN SCHEDULED FOR THIS APPEAL


__________________________________


UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


__________________________________


No. 92-3242


__________________________________


UNITED STATES OF AMERICA


V.



xxxxxxx xxxxxxx,


Appellant.


__________________________________


ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

(Criminal No. 92-0092-01)


__________________________________


BRIEF OF APPELLANT

xxxxxxx xxxxxxx

__________________________________


A.J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500


LEIGH A. KENNY

Assistant Federal Public Defender

Counsel for Appellant


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 11 of the General Rules of the Court, appellant xxxxxxx xxxxxxx hereby states as follows:

PARTIES


The appellant, xxxxxxx xxxxxxx, and the appellee, the United States, are the only parties before this Court and were the only parties before the District Court.

RULINGS UNDER REVIEW


This is an appeal from a judgment of the district court (Honorable Thomas F. Hogan), dated October 20, 1992, adjudging appellant guilty after a criminal trial of controlled substances and firearms violations. In this appeal, appellant seeks review of the district court's written ruling dated September 28, 1992, denying Mr. xxxxxxx's motion for judgment of acquittal on the charge that he knowingly used and carried a firearm during and in relation to a drug trafficking offense. App. 221. Appellant also seeks review of the district court's oral ruling on May 1, 1992, denying his motion to suppress. App. 087. These rulings have not been reported.


RELATED CASES


This case has not previously been before this Court. There are presently no other related cases pending in this Court of which counsel is aware.


TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES . . . . . i

STATUTES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . 1

A. Proceedings Below . . . . . . . . . . . . . . . . . . 1

B. Statement of Facts . . . . . . . . . . . . . . . . . . 2

    1. The Suppression Hearing . . . . . . . . . . . . . 2

    2. The Trial . . . . . . . . . . . . . . . . . . . . 3


    3. The Motion for Judgment of Acquittal . . . . . . .

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 6


ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.THE DISTRICT COURT ERRED IN DENYING MR. xxxxxxx'S MOTION

FOR JUDGMENT OF ACQUITTAL ON THE CHARGE THAT HE USED AND CARRIED A FIREARM DURING AND IN RELATION TO A DRUG TRAFFICKING OFFENSE . . . . . . . . . . . . . . . . . . . .


A.Standard for Motion for Judgment of Acquittal . . . . .


B.Evidence Necessary to Sustain Conviction Under

Section 924(c)(1) . . . . . . . . . . . . . . . . . . .

 

C.Absence of Evidence in Mr. xxxxxxx's Case . . . . . . . .

 

II.THE DISTRICT COURT ERRED IN DENYING MR. xxxxxxx'S MOTION

TO SUPPRESS EVIDENCE WHERE POLICE ARRESTED MR. xxxxxxx AFTER WITNESSING A ONE-WAY EXCHANGE . . . . . . . . . . . . . . .

 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 18

ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . A-1


TABLE OF AUTHORITIES

CASES

 

 

 

 

STATUTES AND RULES

 

 

 

 

 

 

*Cases chiefly relied upon are marked with an asterisk.

 


STATUTES AND REGULATIONS

Pursuant to Fed. R. App. P. 28(f) and D.C. Cir. R. 11(a)(3), pertinent statutes are reproduced in the Addendum to this brief.


STATEMENT OF JURISDICTION


The Court has jurisdiction under 28 U.S.C. § 1291 over this direct appeal from a final judgment in a criminal case. The district court had jurisdiction under 18 U.S.C. § 3231.


STATEMENT OF THE ISSUES

 

1.Whether the district court erred in denying appellant's motion for judgment of acquittal on the charge that he knowingly used and carried a firearm during and in relation to a drug trafficking offense, where the evidence showed mere proximity of a firearm to narcotics packaged for distribution?

 

2.Whether the district court erred in denying appellant's motion to suppress, where police arrested appellant after witnessing a one-way transfer of a white object?



STATEMENT OF THE CASE


A.Proceedings Below.


On February 27, 1992, a grand jury returned a five-count indictment charging Mr. xxxxxxx with possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii); possession of heroin in violation of 21 U.S.C. § 844(a); using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c); possession of a firearm with an altered or obliterated serial number in violation of 18 U.S.C. § 922(k); and carrying a pistol without a license in violation of D.C. Code § 22-3204(a). App. 001-03. Footnote

On March 31, 1992, Mr. xxxxxxx filed a motion to suppress tangible evidence and statements. App. 004. xxxxxxx argued that police lacked probable cause to arrest him after witnessing only a one-way exchange. App. 006-07. On May 1, 1992, the district court held an evidentiary hearing and, at the end of the hearing, orally denied the motion. App. 087.

On July 27, 1992, Mr. xxxxxxx proceeded to a jury trial. The trial concluded on July 30, 1992, when the jury found Mr. xxxxxxx guilty on the five counts charged in the indictment. App. 201-02.

On October 13, 1992, the district court sentenced Mr. xxxxxxx to a total of one hundred twenty months in prison, to be followed by a total of seven years of supervised release, and a special assessment of one hundred seventy-five dollars. App. 225. Judgment was entered on October 20, 1992. App. 225. A timely notice of appeal was filed on October 15, 1992. App. 229. Mr. xxxxxxx is incarcerated pending this appeal.


B.Statement of Facts.


1.The Suppression Hearing.


Before trial, xxxxxxx moved to suppress tangible evidence and statements. App. 004. xxxxxxx argued that police arrested him without probable cause because police had witnessed only a one-way transfer of a white object, not a two-way exchange of an object for currency. App. 006-07.

Sergeant Gerald Neil was the prosecution's first witness at the suppression hearing. App. 013. At about 8:40 p.m. on February 5, 1992, Neil was alone in an elevated observation post, one or two stories above the 1900 block of 9th Street, N.W., using binoculars. App. 013-14, 016, 018, 025, 032-33. Neil testified that "[i]t was dark, but it's a well-lit area." App. 015.

Neil saw a brown Volvo pull up on 9th Street, N.W. App. 029. Mr. xxxxxxx got out of the driver's side and walked south on 9th Street, N.W. App. 029. Mr. xxxxxxx walked over to a group of people, and the group went inside a club with a purple or blue canopy. App. 031.

Later Mr. xxxxxxx came out of the club and Neil saw him "approach another subject" and "open up a key case" that was one to one and one-half inches wide and a couple inches long. App. 014, 033. Neil testified that, when this occurred, Mr. xxxxxxx was two steps to his left and thirty feet away, with his back to Neil. App. 014-15, 032.

Although the key case "was only opened up for a second," App. 034, Neil saw "one big chunk of white object" in the key case, App. 014. Neil then saw xxxxxxx "turn the key case over and dump something into the other subject's hand." App. 014. The other subject looked at the object, which Neil claimed was "a white rock." App. 014-16. Neil believed that the substance was in a plastic bag, because the other subject's "finger moved smoothly" across it. App. 016. The other subject then closed his hand and walked away. App. 014. Neil believed that the substance was crack cocaine. App. 016.

Neil testified that he did not see the suspected buyer in the transaction hand any money to Mr. xxxxxxx. App. 034-35. During the entire time that Neil had the two men under observation, the suspected buyer never handed xxxxxxx any money. App. 035. The district court questioned the witness as follows:

The Court:As I understand your testimony, in this case you didn't see anything given in exchange for this suspected narcotic, this white rock.

 

Neil:That's correct, sir; I did not. I didn't see him give him anything in exchange for it. He just gave him the rock. That's the part I saw.


App. 042.


Neil then broadcast a lookout

 

for a black male, big built, had on a brown skull cap, black leather jacket, and brown--light brown pants, and he was getting into a car I believed to be a brown Volvo, with D.C. registration. And the car was southbound on 9th Street, towards T.


App. 016. According to Neil, his unrecorded broadcast included the tag number of the Volvo and stated that the suspect was the driver of the Volvo. App.017, 024. Footnote When Neil saw the Volvo later, he realized that it was not brown, but "silver or gray." App. 039.

Officer Harry Campbell also testified at the motions hearing. Campbell explained that, in connection with Neil's activities in the observation post, police had two cars in the vicinity of the 1900 block of 9th Street, N.W. at about 8:40 p.m. on February 5, 1992. App. 045. First, a "spotter" vehicle with two officers pulled behind the Volvo after Neil broadcast the unrecorded lookout. App. 045. Second, an arrest vehicle (which Campbell was in) had been parked on S Street, N.W., and joined behind the spotter vehicle once it stopped at a traffic light at 9th and S Streets, N.W. App. 045, 051.

The arrest team followed the Volvo to 13th and R Streets, N.W. App. 045. When the Volvo stopped, officers approached it and ordered the driver, Mr. xxxxxxx, out of the car. App. 045. Officer Campbell testified that

[o]nce the defendant was asked to step out of the vehicle, he was then searched. During the lookout, Sergeant Neil advised us that the defendant was in possession of a key case . . . . Recovered from that defendant's coat pocket was a black case and inside of that case it contained nine ziplocks with a rocklike substance.


App. 046. Police also recovered a paging device and $67 from Mr. xxxxxxx's person. App. 046. Police searched the Volvo on the scene and recovered a change purse containing 29 ziplock bags of a rock-like substance from the driver's side door panel. App. 046-47.

At the police station, an officer recovered one ziplock bag containing heroin from Mr. xxxxxxx's sweatshirt pouch. App. 047. Also at the police station, police again searched the Volvo and recovered a .32 caliber revolver loaded with five rounds of ammunition "next to the driver's side, near the console." App. 047.

The prosecution's final witness at the motions hearing was Sergeant Francis Morgan, who testified about post-arrest statements by Mr. xxxxxxx. App. 056. According to Morgan, xxxxxxx's first statement was that he did not sell drugs, but that he used drugs and could have used the drugs in question by Thursday night. App. 057. After officers brought the revolver into an area where Mr. xxxxxxx was present, Mr. xxxxxxx explained that he had loaned his car to a man named Mike, whom Mr. xxxxxxx described, and that he believed that the gun belonged to Mike. App. 058.

Contrary to Neil's testimony, Morgan recalled hearing two radio broadcasts. App. 063. Morgan recalled that the first broadcast was for the suspected buyer, App. 063, and the second broadcast was for the car, App. 063. Morgan remembered virtually nothing about the content of either broadcast. App. 061.

At the conclusion of the suppression hearing, the district court denied Mr. xxxxxxx's motion to suppress. App. 087. The district court made findings that at approximately 8:40 p.m., Neil was in an observation post "obviously in a building, looking almost straight down, with binoculars." App. 080. "It was a well lit, even though it was dark, area." App. 080. Mr. xxxxxxx's back was to Neil. App. 080. The district court credited Neil's testimony

that he saw the gentleman he's identified as Mr. xxxxxxx with a black magnetic key case, that he opened up and could see, although he couldn't differentiate whether there was one or several, but a whitish rocklike substance in the key case, which was turned upside down to hand to another individual, who apparently received from it, according to his further observations, a single rock that may have been in a plastic bag because when he rubbed his hand over it, or thumb over it, as he testified; that he could see what it was and that it was one what to him was a whitish rock. He could not see what color of plastic bag it may have been in or not.


App. 081.


The district court concluded that Neil's observations, coupled with his experience and presence in a high narcotics area, provided probable case for xxxxxxx's arrest, App. 083, and denied the motion to suppress. Footnote


    2. The Trial.


a. Events on 9th Street, N.W.


At about 8:40 p.m. on February 5, 1992, Sgt. Gerald Neil was in a rooftop observation post near 9th and U Streets, N.W. App. 094, 096-97, 105. Neil was approximately thirty feet above the sidewalk and was using binoculars. App. 096-97, 106. It was dark out but the sidewalk below Neil was "pretty well lit." App. 097, 106.

Neil had been on the rooftop ten to fifteen minutes when he saw Mr. xxxxxxx drive into the area in a Volvo. App. 098, 109. A passenger was seated in the front passenger seat. App. 099. After xxxxxxx stopped and got out of the car, Neil saw xxxxxxx walk past him and enter a nightclub with a blue awning. App. 098, 103-04. xxxxxxx was wearing a brown skull cap, black leather coat, and light brown pants. App. 099.

While inside the nightclub, xxxxxxx received a black, magnetic key case containing ten ziplock bags of cocaine base and a ziplock bag of heroin. App. 178-80. xxxxxxx received the drugs from a man named Mike to whom xxxxxxx had loaned the Volvo automobile earlier that day. App. 176, 190-91. After receiving the narcotics and telling Mike that he was going with a female friend in the Volvo to get something to eat, xxxxxxx said that he would return soon and walked toward the door to leave the nightclub. App. 178-79, 190. Before going outside, xxxxxxx opened the key case to see the contents. App. 179, 190-91, 195.

Neil saw xxxxxxx coming from the nightclub a few minutes after xxxxxxx had entered the club. App. 100. xxxxxxx walked toward where the Volvo was double-parked. App. 100-01, 104, 180. Before reaching the Volvo, xxxxxxx stopped on the sidewalk and gave one rock from the black, magnetic key case to a man named "Mo," who had provided Mr. xxxxxxx with drugs previously. App. 100, 104, 180, 192-93. xxxxxxx received no money from Mo. Neil (still on the rooftop) saw xxxxxxx produce a key case and give a white object to Mo, and thought that the object was crack cocaine. App. 100, 104, 107-08. After the encounter with Mo, xxxxxxx got back into the Volvo and drove off with the passenger, a friend named Tajuana Queen. App. 101-02, 104, 177, 180, 187-88.

 Neil saw no pistol in xxxxxxx's hands or on his person. App. 108-09. Neil did not claim to have seen any bulge in xxxxxxx's clothing that could have been a weapon. Neil did not describe any movement or gesture by xxxxxxx (such as a hand held near a waistband) that would suggest that xxxxxxx had a pistol while on 9th Street, N.W. Footnote


b.Events at 13th and R Streets, N.W. After watching xxxxxxx's encounter with Mo, Neil broadcast a lookout. App. 101, 104. Two unmarked cars--with neither sirens nor flashing lights--followed the Volvo. App. 101-02, 104, 111-14, 126-28, 134, 149. When the Volvo stopped at a light at 13th and R Streets, N.W., officers approached the Volvo and ordered the driver from the car. App. 114-15, 128, 134, 143, 180. xxxxxxx was in the driver's seat and Tajuana Queen was in the front passenger's seat. App. 115, 128, 136, 138.

 Of the approximately eleven police officers who testified at trial, none said that xxxxxxx made any movement toward the area down between the driver's seat and the middle console (1) after he got in the Volvo on 9th Street, N.W., (2) as he was driving to 13th and R Streets, N.W., or (3) as the officers from the unmarked cars approached the Volvo when it stopped at a light.

At 13th and R Streets, N.W., Officer Harry Campbell ordered xxxxxxx from the car and searched him. App. 116, 135-36, 180-81. Neil's lookout had indicated that the driver of the Volvo had narcotics in a key case, App. 115-16, and Campbell recovered the black key case from xxxxxxx's coat pocket, App. 116, 128-29, 144, 181. The key case contained nine ziplock bags of crack cocaine. App. 116-17, 145. Campbell also recovered $67 from xxxxxxx's person. App. 120. No pistol or ammunition was recovered from xxxxxxx's person. App. 129.

At 13th and R Streets, N.W., Officer Aletha Adams searched the Volvo automobile. App. 117. Adams recovered a small, brown coin purse containing 29 ziplock bags of a white substance from a map compartment on the bottom portion of the driver's side door. App. 117-18, 119, 139-141, 148.

 

c.Events at the Third District Police Station.


Police took xxxxxxx to the Third District police station. App. 121. At some point, an officer did a WALES computer check and determined that the Volvo was registered to Mr. xxxxxxx. App. 124-25. Footnote

In the lower garage at the Third District, Campbell and several other officers again searched the Volvo. App. 121, 129, 136. From down between the driver's seat and the console on which the gear shift is mounted, an officer recovered a .32 caliber, five-shot revolver loaded with five rounds of ammunition. App. 121, 123, 136, 153.

 Before the pistol was recovered, Officer Campbell had driven the Volvo from 13th and R Streets, N.W. to the Third District. App. 121-22, 129-30. The Volvo had an automatic transmission with a gear shift located between the driver's seat and the passenger seat. App. 130. Campbell sat in the driver's seat and used the gear shift in driving the Volvo from 13th and R Streets, N.W. to the Third District. App. 130. Although Adams and Campbell searched the Volvo (including the map compartment in the driver's side door) at 13th and R Streets, N.W., and although Campbell then drove the Volvo from 13th and R Streets, N.W. to the Third District, police did not locate the pistol until the Volvo was searched again by several officers in the garage of the Third District.

Officer Shieder processed the pistol for fingerprints using fingerprint powder. App. 153, 155. He recovered no fingerprints. App. 154.


c.Absence of Evidence About Pistol.


At trial, the prosecution offered no evidence that xxxxxxx had ever been seen by anyone with the revolver that police recovered from between the driver's seat and the console of the Volvo, or that he had ever been seen with any other weapon. Further, the prosecution offered no evidence that xxxxxxx used or carried a pistol when he gave one rock to the man on 9th Street, N.W. earlier that evening before re-entering the Volvo.

Of the approximately eleven officers who testified at trial, none stated that xxxxxxx ever made any movement toward the console upon entering the Volvo (as if to place the pistol there) or that he ever made any movement toward the console at any other time (as if to place or retrieve the pistol). Police recovered no ammunition or any other item linking xxxxxxx to the pistol from xxxxxxx's person.

In addition, the Volvo did not contain a large "stash" of narcotics or cash to protect. The quantity of narcotics recovered from the Volvo was not large (1.848 grams in the key case and 6.082 grams in the coin purse). App. 198-99 (two DEA-7 forms admitted as prosecution exhibits). (Tr. at 313 and DEA-7 forms). xxxxxxx had only $67 in cash on his person when he was arrested. App. 120. The prosecution offered no evidence that any cash was recovered from the Volvo.

Further, drug expert David Stroud testified that, although "[d]rugs and weapons go hand in hand," App. 161, "the .32-caliber revolver is not the weapon of choice used by drug dealers," App. 162. Officer Shieder testified that police recovered no usable fingerprints from the pistol. App. 153-54.

xxxxxxx denied knowledge of the pistol recovered from down between the driver's seat and the middle console, and of the coin purse recovered from inside the map compartment. App. 181-83. As he had done on the night he was arrested, xxxxxxx explained that he had loaned the Volvo to Mike on the afternoon or early evening of February 5, 1992, the date that he was arrested, and that he believed that Mike had placed the gun and coin purse in the Volvo. App. 176, 182, 184-86, 194. xxxxxxx admitted to having received the key case and its contents from Mike while inside the club. App. 176-77, 179, 182, 184, 189.


    3. Mr. xxxxxxx's Motion for Judgment of Acquittal.


Pursuant to Fed. R. Crim. P. 29(c), Mr. xxxxxxx moved for judgment of acquittal on count three of the indictment, charging a violation of 18 U.S.C. § 924(c), on the ground that the evidence was insufficient to support a conviction for using and carrying a firearm during and in relation to a drug trafficking offense. App. 163-74 (motion at close of prosecution's case); App. 196 (motion at close of all evidence); App. 205 (post-trial motion). The district court denied Mr. xxxxxxx's motion. App. 174, 196, 221.


SUMMARY OF ARGUMENT


The district court erred denying Mr. xxxxxxx's motion for judgment of acquittal on the charge that he knowingly used and carried a firearm during and in relation to a drug trafficking offense, because the prosecution's evidence showed nothing more than a firearm in proximity to narcotics packaged for distribution. See United States v. Bruce, 939 F.2d 1053, 1055 (D.C. Cir. 1991).

The district court erred in denying Mr. xxxxxxx's motion to suppress. Sergeant Neil, the officer in the observation post, saw only a one-way transfer of a white object, not a two-way exchange of an object for currency. Under the totality of the circumstances, that one-way exchange did not provide probable cause for Mr. xxxxxxx's arrest. Because the officers who arrested Mr. xxxxxxx lacked probable cause to do so, the district court erred in not suppressing the fruits of his unlawful arrest.


ARGUMENT


I.THE DISTRICT COURT ERRED IN DENYING MR. xxxxxxx'S MOTION

FOR JUDGMENT OF ACQUITTAL ON THE CHARGE THAT HE USED AND CARRIED A FIREARM DURING AND IN RELATION TO A DRUG TRAFFICKING OFFENSE.


A.Standard for Motion for Judgment of Acquittal.


A motion for judgment of acquittal must be granted when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. In considering a motion for judgment of acquittal, the trial court must view the evidence in the light most favorable to the prosecution. See United States v. French, 470 F.2d 1234, 1242 (D.C. Cir. 1972), cert. denied, 410 U.S. 909 (1973). In this case, the district court should have granted xxxxxxx's motion for judgment of acquittal on the § 924(c)(1) charge because the prosecution produced insufficient evidence from which a reasonable juror fairly could have concluded guilt beyond a reasonable doubt. See United States v. Derr, 990 F.2d 1330, 1337 (D.C. Cir. 1993); United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.), cert. denied, 498 U.S. 948 (1990).

 

B.Evidence Necessary to Sustain A Conviction Under 18 U.S.C. § 924(c)(1).


Section 924(c)(1) provides, in pertinent part:

 

Whoever, during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such . . . drug trafficking crime, be sentenced to imprisonment for five years.


The Supreme Court recently construed Section 924(c)(1) in Smith v. United States, 113 S. Ct. 2050 (1993). As this Court had previously ruled in United States v. Harris, 959 F.2d 246, 261-62 (D.C. Cir.) (per curiam), cert. denied, 113 S. Ct. 362 (1992), the Supreme Court in Smith held that trading a firearm for narcotics constituted "use" of a firearm "during and in relation to [a] . . . drug trafficking crime." Smith, 113 S. Ct. at 2060.

  The issue in Smith was whether exchanging a firearm for drugs constituted "use" under the statute. Id. at 2053. Smith argued that § 924(c)(1) applied only to "situations in which the firearm is used as a weapon." Id. In rejecting Smith's argument that a firearm is not "use[d]" under the statute unless "fired or otherwise employed for its destructive capacity," id. at 2054, the Court construed the word "use" in accord with its ordinary or natural meaning, which the Court found broad enough to encompass "use" of a firearm in a gun-for-drugs trade, id. at 2054-55.

The Court went on to emphasize that, in addition to the requirement that the defendant "use[] or carr[y]" a firearm, § 924(c)(1) also requires that such use or carrying occur "during and in relation to" a drug trafficking crime. Id. at 2056. The Court explained that the "in relation to" requirement "illuminate[s] § 924(c)(1)'s boundaries." Id. at 2058.

The phrase "in relation to" thus, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. As one court has observed, the "in relation to" language "allay[s] explicitly the concern that a person could be" punished under § 924(c)(1) for committing a drug trafficking offense "while in possession of a firearm" even though the firearm's presence is coincidental or entirely "unrelated" to the crime. United States v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985) (Kennedy, J.)


Id. at 2059.

 

As the Supreme Court did in Smith, this Circuit previously has declared that § 924(c)(1) is far more than a simple possession statute, and that the mere presence of a pistol near a cache of drugs is insufficient to establish a violation. See United States v. Bruce, 939 F.2d 1053 (D.C. Cir. 1991). In that case, Bruce told officers executing a search warrant that "'everything [they] wanted was in his coat pocket hanging in the closet.'" Id. An officer searched a closet next to the front door of the apartment and

[i]n various pockets of a trench coat hanging on the inside hook of the closet door, the police officer found the following items: a large ziplock bag containing eleven smaller ziplock bags holding 20.35 grams of crack cocaine; a ziplock bag containing 1.86 grams of cocaine powder; a ziplock bag with .125 grams of marijuana; a brown paper bag containing a number of empty ziplock bags; a brown bag containing a belt buckle which held a fully loaded .22 caliber four-shot derringer, as well as eight rounds of .22 caliber ammunition; and $858 in cash. Another $920 was found in a man's blazer in the closet. Both the coat and blazer belonged to Bruce.


Id. The drug expert at Bruce's trial testified that "'drugs and guns go hand in hand.'" Id. The expert opined that the gun "would be to protect the operation from people who would seek to either terminate the operation or take over the operation; also, protect the person handling the money from the holdup men out there." Id.

Bruce "argue[d] that there was no proof either that the gun was used to safeguard the drugs or that any drug distribution took place in which the gun played a facilitating role." Id. at 1053-54. Bruce emphasized that his conviction under 18 U.S.C. § 924(c) "was improperly based on mere possession of a firearm" in close proximity to narcotics packaged for distribution. Id. at 1054. Citing cases from the Second, Third, Fifth, Sixth, Eighth, and Tenth Circuits, the Court in Bruce declared that "[t]he government cannot convert section 924(c) into a simple possession statute." Id. at 1054-55 (emphasis added). The Court emphasized that "when Congress wishes to criminalize the possession of a firearm it knows how to do so." Footnote

The Bruce Court distinguished cases in which officers find "guns . . . strewn around a 'crack house' in which drugs are stored," where "it might be inferred that the guns are there to protect the occupant's 'possession.'" Bruce, 939 F.2d at 1055; see United States v. Morris, 977 F.2d 617, 623 (D.C. Cir. 1992) (three weapons strategically placed in one-bedroom apartment from which police also recovered drugs, paraphernalia, and cash); United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989) (sawed-off shotgun, two revolvers, twenty grams of cocaine base, four ounces of cocaine powder, marijuana, triple-beam scale, torch head for use with butane canister, ammunition, and currency found in crack house); see United States v. Williams, 952 F.2d 418 (D.C. Cir. 1991) ("slew of weapons," at least four boxes of ammunition, PCP, more than 50 grams of cocaine base, and beakers found inside crack house and thrown in back yard), cert. denied, 113 S. Ct. 148 (1992).

In United States v. Derr, 990 F.2d 1330, 1337-39 (D.C. Cir. 1993), the Court provided a "nonexclusive set of factors" to weigh in considering whether a firearm has been "used" to protect possession of narcotics within the meaning of § 924(c). Id. at 1338. Those factors include (1) whether the gun is accessible to the defendant; (2) whether the gun is located in proximity to the drugs (which may cut either way depending upon the facts of a particular case); (3) whether the weapon is loaded; (4) the type of weapon; and (5) whether expert testimony bolsters the prosecution's particular theory of "use." Id. In addition to the factors listed in Derr, the Court also has considered (a) the number of weapons, (b) whether the prosecution has evidence that the defendant recently used the gun in relation a drug trafficking offense, Footnote and (c) whether the gun was "openly display[ed] as a deterrent to poachers." United States v. Morris, 977 F.2d at 622.


B. Absence of Evidence in Mr. xxxxxxx's Case.


The prosecution's evidence in Mr. xxxxxxx's case showed no more than the physical proximity of a .32 caliber revolver to narcotics packaged for distribution. Although the revolver was loaded (as was the derringer in Bruce), police recovered only a single weapon, not the arsenal of weapons found sufficient in Morris, Anderson, and Williams. With respect to the type of weapon, police did not recover a weapon such as the machine gun in Laing or the sawed-off shotguns in Anderson and Jefferson. Further, as prosecution drug expert David Stroud testified, "the .32-caliber revolver is not the weapon of choice among drug dealers." App. 162 (emphasis added).

Unlike in Jefferson, Laing, and Evans, the prosecution in Mr. xxxxxxx's case presented no evidence that Mr. xxxxxxx had ever been seen by anyone with the .32 caliber revolver recovered from between the driver's seat and the middle console of the Volvo, that he had ever been seen with any other weapon, or that he had ever been known to possess or carry a weapon in connection with drugs. Cf. United States v. Laing, 889 F.2d 281 (evidence introduced that defendants carried loaded machine gun and revolver while engaging in drug trafficking activities); United States v. Evans, 888 F.2d 891 (evidence introduced that defendants used one of three guns to threaten accomplice and coerce him into packaging drugs). To the contrary, Neil testified that when he observed xxxxxxx transfer a white rock to the man on Ninth Street, N.W., he did not see a pistol in xxxxxxx's hands or on his person. App. 108-09. Neil also did not claim to have seen any bulge in Mr. xxxxxxx's clothing that could have been a weapon, nor did he describe any movement or gesture by xxxxxxx (such as a hand held near a waistband) that would suggest that xxxxxxx had a pistol while on 9th Street, N.W.

 Neither Neil nor the officers in the two unmarked cars that followed xxxxxxx to 13th and R Streets, N.W. offered any testimony that xxxxxxx ever made any movement toward the area down between the driver's seat and the middle console (1) after he entered the Volvo on 9th Street, N.W., (2) as he was driving the Volvo from 9th Street, N.W. to 13th and R Streets, N.W., or (3) as the officers from the unmarked cars eventually approached the Volvo at 13th and R Streets, N.W. In short, none of the approximately eleven officers who testified stated that xxxxxxx ever made any movement toward the console upon entering the Volvo (as if to place the pistol there) or that he ever made any movement toward the console at any other time (as if to place or retrieve the pistol). Cf. United States v. Williams, 952 F.2d 418 (evidence introduced that, when police entered apartment to execute search warrant, defendant first tried to escape from rear window, and then police officer saw two firearms, four boxes of ammunition, a pistol case, and a bottle of PCP being tossed from same window).

The prosecution also presented no evidence that the pistol was "openly display[ed] as a deterrent to poachers." United States v. Morris, 977 F.2d at 622. To the contrary, the pistol was so concealed that officers did not find it during their search of the Volvo at 13th and R Streets, N.W., a search that was so thorough that it included searching the map compartment in the driver's side door and removing and opening a change purse found there. Nor did Officer Campbell locate the pistol while he was driving the Volvo back to the garage at the Third District police station, even though he sat in the driver's seat and used the gear shift while driving the car. The weapon was between the driver's seat and console and was not recovered until several officers searched the car (a second time), once it arrived at the garage at the Third District. Footnote

 

Finally, police recovered no usable fingerprints from the pistol, cf. United States v. Williams, 952 F.2d 418 (defendant's fingerprints recovered from ammunition box), and the prosecution offered no evidence that police recovered from xxxxxxx's person any ammunition or any other item linking xxxxxxx to the pistol.

As in Bruce, the prosecution in xxxxxxx's case failed to offer "proof either that the gun was used to safeguard the drugs or that any drug distribution took place in which the gun played a facilitating role." Bruce, 939 F.2d at 1053-54. The prosecution failed to show that the pistol was used or carried "in relation to" the charged offense, because the evidence showed only possession of a firearm in proximity to narcotics. See Smith, 113 S. Ct. 2058. Here, with minimal evidence other than the fact that a .32 caliber pistol and a small quantity of narcotics were recovered from the Volvo, xxxxxxx was convicted of using and carrying a firearm during and in relation to a drug trafficking offense. Because the prosecution failed to introduce sufficient evidence, the district court erred in denying Mr. xxxxxxx's motion for judgment of acquittal. The Court should reverse Mr. xxxxxxx's conviction for using and carrying a firearm during and in relation to a drug trafficking offense.

 

II.THE DISTRICT COURT ERRED IN DENYING MR. xxxxxxx'S MOTION

TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS BECAUSE POLICE LACKED PROBABLE CAUSE TO ARREST MR. xxxxxxx.


Sergeant Gerald Neil's observation of a one-way transfer of a white object from Mr. xxxxxxx to another man did not provide police with probable cause to arrest Mr. xxxxxxx. The district court erred in denying Mr. xxxxxxx's motion to suppress.

Among other factors, the Court has recognized the importance of a two-way exchange in providing probable cause for an arrest. See, e.g., United States v. Harley, 990 F.2d 1340, 1342 (D.C. Cir. 1993) (police had probable cause to arrest where, among other things, police observed one suspect making three exchanges, handing object to individual in exchange for money each time), petition for cert. filed ___ S. Ct. ___ (July 19, 1993); United States v. Lucas, 778 F.2d 885 (D.C. Cir. 1985) (per curiam) (two-way exchange of currency for suspected narcotics supplied probable cause for arrest); United States v. Green, 670 F.2d 1148, 1151-53 (D.C. Cir. 1981) (probable cause for arrest existed based on number of factors, including officer's observation of money being exchanged for small object); United States v. White, 655 F.2d 1302, 1303 (D.C. Cir. 1981) (officers who observed suspect exchanging money for small object in "high narcotics area" had probable cause to arrest); United States v. Davis, 561 F.2d 1014, 1016-17 (D.C. Cir.) (probable cause existed where police observed repeated transactions involving money and pink tablets), cert. denied, 434 U.S. 929 (1977); United States v. Thomas, 551 F.2d 347, 348 (D.C. Cir. 1976) (per curiam) (probable cause existed where officer observed tin foil packet being exchanged for money); United States v. Davis, 458 F.2d 819, 820-822 (D.C. Cir. 1972) (probable cause existed where police observed exchange of money for small brown package and defendant was with drug addicts).

In xxxxxxx's case, by contrast, Neil saw only a one-way transfer of a white object from xxxxxxx to another man; he did not see the suspected buyer in the transaction hand any money to Mr. xxxxxxx. App. 034-35. The district court questioned Neil as follows:

The Court:As I understand your testimony, in this case you didn't see anything given in exchange for this suspected narcotic, this white rock.

 

Neil:That's correct, sir; I did not. I didn't see him give him anything in exchange for it. He just gave him the rock. That's the part I saw.


App. 042.


Neil also gave no indication that he had any additional information about xxxxxxx or the recipient of the white object, nor did he testify that either xxxxxxx or the recipient of the white object acted furtively or appeared to be under the influence of drugs. See United States v. Jenkins, 530 F. Supp. 8, 11 (D.D.C. 1981) (trained narcotics officers in high-drug area saw white male approach black male, saw black male approach Jenkins, saw Jenkins hand something to black male, then saw black male turn and hand something to white male in exchange for currency; police lacked probable cause to arrest because officers could not see what was transferred, Jenkins did not act furtively or nervously, did not appear to be under the influence of drugs, did not attempt to flee when approached, and had never been observed before by police).

 Further, although Neil testified that he observed a "white rock" in the recipient's hand, App. 014-16, he conceded that the key case he had seen xxxxxxx open was only one to one and one-half inches wide and a couple inches long, App. 014, 033, that xxxxxxx's back was to him when the one-way exchange occurred, App. 014-15, 032, and that the key case "was only opened up for a second," App. 034. While the key case was open, Neil did not see individual rock-like substances inside, but could see only "one big chunk of white object." App. 014. Footnote

Where the Court has found probable cause to arrest based upon policer officers' observations of suspected drug transactions, it has done so on facts distinguishable from those in Mr. xxxxxxx's case. For example, in United States v. Garrett, 959 F.2d 1005 (D.C. Cir. 1992), an experienced narcotics officer in an observation post saw Garrett and Campbell standing near a parked car. The car and tag number matched a description given by a citizen claiming that drugs were sold there. The officer watched Campbell pass money to Garrett, who reached inside the car and retrieved a small object which he passed to Campbell. Another man joined Campbell and Garrett and all three men walked away from the car. Suspecting that a drug transaction had just occurred, the officer directed other officers to stop all three men. As those officers approached, Campbell dropped a pouch to the ground. The pouch was the size of the item that the officer in the observation post had seen exchanged. Officers arrested Campbell, then detained Garrett and the third man while they searched Garrett's car. Officers arrested Garrett after finding drugs in the car. The Court ruled that, based on the experience of the officer in the observation post, his observation of the two-way exchange, the area's reputation as a "high narcotics area," and the fact that Garrett's car and tag number matched a description provided by a citizen who claimed drugs were sold there, the officers had reasonable suspicion to conduct an investigatory stop of the three men. That reasonable suspicion did not rise to the level of probable cause until police observed Campbell drop the pouch of drugs to the ground. Id. at 1007.

In xxxxxxx's case, Neil observed only the one-way transfer of a white object from a key case from xxxxxxx to another man. Given the absence of any evidence that money was transferred in return, that xxxxxxx or the recipient acted furtively or nervously or appeared to be under the influence of narcotics, or that officers had any additional information about xxxxxxx or the recipient of the white object, the police had only reasonable suspicion, not probable cause to arrest Mr. xxxxxxx. See United States v. Garrett, 959 F.2d at 1007; United States v. Jenkins, 530 F. Supp. at 11 ("[o]bservations made by officers warranted suspicion that incident involved narcotics, but were insufficient to cause that suspicion to ripen into probable cause"). Because officers arrested Mr. xxxxxxx without probable cause, the district court erred in denying Mr. xxxxxxx's motion to suppress.


CONCLUSION


For the foregoing reasons, appellant xxxxxxx xxxxxxx's conviction must be reversed.

Respectfully submitted,


A.J. KRAMER

FEDERAL PUBLIC DEFENDER




__________________________

Leigh A. Kenny

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500


Counsel for xxxxxxx xxxxxxx


Dated: July 30, 1993


CERTIFICATE OF SERVICE


I hereby certify that on the 30th day of July 1993, I caused two copies of the foregoing Brief of Appellant xxxxxxx xxxxxxx, together with the Addendum and the Appendix thereto, to be served by first-class mail, postage prepaid, upon:

xxxxxxx R. Fisher, Esquire

Chief, Appellate Division

Office of the United States Attorney

  for the District of Columbia

555 - 4th Street, N.W.

Washington, D.C. 20001





_____________________________

Leigh A. Kenny








ADDENDUM




TABLE OF CONTENTS



STATUTES


18 U.S.C. § 924(c)(1) . . . . . . . . . . . . . . . . . . . A-1


21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . A-2


21 U.S.C. § 841(b)(1)(B)(iii) . . . . . . . . . . . . . . . A-3








 












APPENDIX


TABLE OF CONTENTS



INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . 1


MOTION TO SUPPRESS. . . . . . . . . . . . . . . . . . . . . .2


EXCERPT FROM MOTIONS HEARING TRANSCRIPT (MAY 1, 1992) . . . .


EXCERPTS FROM TRIAL TRANSCRIPT . . . . . . . . . . . . . . .


MOTION FOR JUDGMENT OF ACQUITTAL . . . . . . . . . . . . . .


ORDER DENYING MOTION FOR JUDGMENT OF ACQUITTAL . . . . . . .


JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . 59


NOTICE OF APPEAL . . . . . . . . . . . . . . . . . . . . . 63