Opinion
No. 03 Cr. 906 (RPP).
January 20, 2005
David N. Kelley, U.S. Attorney, Southern District of New York, ATTN: Katherine A. Lemire, Brian R. Michael, New York, NY, Counsel for Windzer Fleurissaint.
Shearman Sterling LLP New York, NY, By: Tai H. Park, Esq.
REVISED OPINION AND ORDER
On October 4, 2004, Defendant Windzer Fleurissaint moved for a judgment of acquittal on Count Five of the Superseding Indictment, S6 03 Cr. 906 (the "Indictment"), pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. This motion is granted for the reasons that follow.
BACKGROUND
On September 23, 2004, Defendant was convicted by a jury of: (1) participation in a conspiracy to commit a robbery of narcotics in or about May 2003, in violation of 18 U.S.C. § 1951 (Count 1); (2) attempting to commit a robbery of narcotics on May 28, 2003, in violation of 18 U.S.C. § 1951 (Count 2); (3) carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the conspiracy to commit robbery charged in Count 1 and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the attempted robbery charged in Count 2, in violation of 18 U.S.C. § 924(c) (Count 3); (4) participation in a conspiracy to distribute or possess with the intent to distribute at least ten kilograms but less than twenty kilograms of marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(D), and 846 (Count 4); and (5) "possessing a firearm in furtherance of the narcotics conspiracy charged in Count Four in violation of 18 U.S.C. § 924(c) (Count 5). The jury found the Defendant was not guilty of carrying a firearm "during and in relation to the narcotics conspiracy charged in Count Four," an allegation which was contained in Count Five of the Superseding Indictment.
During the jury's deliberation, it sent a note to the Court requesting clarification on "[t]he difference between `carrying a firearm during and in relation to a crime' and `possessing a firearm in furtherance of a crime.'" (Court Ex. 15.) In response, the Court referred the jury to the pages of the Jury Charge, which had previously been provided to the jury, explaining the "possession of a firearm in furtherance of" and the "carrying a firearm during and in relation to" elements. (Court Ex. 17.)
The Superseding Indictment also charged the Defendant with aiding and abetting the use, carrying, and possession of, a firearm during and in relation to and in furtherance of the narcotics conspiracy charged in Count Four. During the trial, the Court determined that the government submitted insufficient evidence to support the aiding and abetting charge in Count Five, and therefore, the aiding and abetting instruction on Court Five was not submitted to the jury and not included in the jury charge. See Trial Tr. at 936.
The government's case consisted primarily of the testimony of two cooperating witnesses, Mark Lee and Kevin Moore, who had participated in the robbery and narcotics conspiracies and who had pleaded guilty to the crimes charged in the Indictment. Both cooperating witnesses testified that while in Texas, they and the Defendant, together with Kevin Miller, had engaged in a series of armed robberies of marijuana dealers and had decided to come to New York to sell the marijuana obtained during those robberies and to conduct more robberies. (Trial Tr. at 176-77, 185-201, 205, 541-52, 560.)
During the trial and in pretrial submissions, the government maintained that the Defendant possessed a firearm in furtherance of the conspiracy to transport marijuana from Texas to New York City and to sell that marijuana in New York. Specifically, the government maintained that the guns were brought up from Texas to protect the marijuana. (See Gov't Letter to Court, dated Aug. 5, 2004, at 2, 5 n. 7; Trial Tr. at 957-58, 1022.)
Mark Lee, one of the government's witnesses, testified that he, Kevin Moore, Kevin Miller, and the Defendant, as well as two women, had a share of the sixty to seventy of marijuana and transported it, along with four disassembled guns, in six suitcases on a Greyhound bus from Texas to New York. (Trial Tr. at 203, 217-19.) He did not identify which suitcases contained guns or marijuana. He testified that the members of the group, including the Defendant, arrived in downtown Manhattan and then went to Lee's apartment in the Bronx. (Id. at 221.) Lee did not testify as to how the group traveled to his apartment, i.e., whether they took separate cars or all went together on the subway. Lee testified that the Defendant stayed at Lee's apartment from that time onward. (Id.) Lee stated that upon arriving in New York, he sold some of the marijuana and gave the rest of it to someone to sell on consignment, but he did not specify when that person picked up the marijuana from his apartment. (Id. at 222.) Lee stated he received the proceeds from the consignment sale of the marijuana after his imprisonment (Id.)
The other government witness, Kevin Moore, testified that thirty-five pounds of marijuana and three guns, two .45s and one 9mm, were transported from Texas to New York. (Id. at 556-58.) He stated that the three guns belonged to Kevin Miller, "Mr. Juicy" (Defendant Fleurissaint), and himself, that their guns were placed in their suitcases, and that Defendant was present while the suitcases were being packed. (Id.) As to the marijuana, Moore testified that the marijuana belonged to, and was placed in the suitcases of, Mark Lee, Kevin Miller, and himself and was divided in shares of ten pounds, fifteen pounds and ten pounds, respectively. (Id.) Moore testified that Lee, Miller, and the Defendant carried their own suitcases, while Moore's "female" carried his bag. (Id. at 554-55.) According to Moore, none of the marijuana brought on the bus from Texas to New York had been transported by, or belonged to, the Defendant, but the proceeds from the sale of the marijuana would be used to take care of him. (Id. at 556, 559.) Moore testified that that there were six people in their group traveling from Texas to New York on the Greyhound bus. (Id. at 553.) Moore testified that the marijuana was picked up by a couple of Lee's friends, who were supposed to sell the marijuana and return the money to Lee. (Id. at 563-64.) There was no further evidence as to when Lee's friends picked up the marijuana.
Defendant's post-arrest statement to Detective Killen, in which Defendant stated that some marijuana and at least one gun were brought from Texas to New York in suitcases, was also entered into evidence. (Gov't Ex. 25 at 2; Trial Tr. at 671, 768.)
With respect to the reason for bringing the guns from Texas to New York, Lee testified that the guns were brought "[t]o use them on the robberies, to also protect ourselves if we run into anybody that we robbed before and to protect the drugs that we were going to sell to other people." (Id. at 218.) When asked what he meant by this statement, Lee responded, "Like normally I got robbed a couple of times, so whenever I'm going to sell drugs to somebody I bring my gun with me." (Id. at 219.) Lee further explained that "we [were] not going to use the guns on the bus" and that the guns had been disassembled before packing them in suitcases for transport on the bus to New York. (Id.) Lee testified that when selling marijuana in New York in the past, he had a gun "to protect myself and to protect the drugs that I'm selling . . . [i]n case somebody tried to rob me." (Id. at 151-52.) He did not testify that the Defendant had said why he was bringing a gun to New York.
When Moore was asked why he brought a gun on the trip from Texas to New York, he responded, "I bring my gun with me because we were going to rob some guys up here. And I bring it for protection mostly, sir." (Id. at 562.) Moore testified that he carried a gun when he sold marijuana in Cleveland for protection because sometimes it's rough there in Cleveland." (Id. at 529.) He also did not testify that the Defendant had said why he was bringing a gun to New York.
DISCUSSION
I. Standard for Reviewing the Sufficiency of the Government's Evidences
"A defendant challenging the sufficiency of the evidence supporting a conviction faces a `heavy burden.'" United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). A defendant must demonstrate that the "essential elements of the crime charged could not be found beyond a reasonable doubt by any rational trier of fact." United States v. McDermott, 277 F.3d 240, 242 (2d Cir. 2002).
When considering the sufficiency of the evidence, a court must "view all of the evidence in the light most favorable to the government."United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002). The court must view "the evidence in its totality, . . . and the government need not negate every theory of innocence." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). Also, the court must "resolve all issues of credibility in favor of the . . . verdict," United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001), and draw all permissible inferences in the government's favor, United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995).
"[H]owever, . . . where a fact to be proved is also an element of the offense . . . it is not enough that the inferences in the government's favor are permissible. [The court] must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all the elements, is established beyond a reasonable doubt." Martinez, 54 F.3d at 1043. "[I]f the evidence viewed in the light most favorable to the prosecution gives `equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence,' then `a reasonable jury must necessarily entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).
Although it is well established that "the prosecution may prove its case entirely by circumstantial evidence," Glenn, 312 F.3d at 64, there must be "a sufficient evidentiary predicate to support the conclusion [reached]" id. at 70. "[A] conviction based on speculation and surmise alone cannot stand." United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994).
II. Section 924(c) Standard
Under § 924(c) of Title 18 of the United States Code, "any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" is subject to criminal penalties. A defendant may be found guilty of violating § 924(c) under one of three alternative prongs. See United States v. Williams, 344 F.3d 365, 370 (3d Cir. 2003). A defendant may violate § 924(c) by using or by carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or by possessing a firearm in furtherance of such a crime. Id. In the instant case, there was no evidence of the use of a gun in connection with Count Four. See Bailey v. United States, 516 U.S. 137 (1995). Accordingly, only the "carry" and "possession" prongs of the statute were submitted to the jury, which found the Defendant not guilty of carrying a firearm during and in relation to the drug trafficking crime charged in Count Four but guilty of possession of a firearm in furtherance of that crime.
Courts have recognized that the "in furtherance of" requirement of the statute is by congressional design more stringent than the "during and in relation to" standard. United States v. Mackey, 265 F.3d 457, 461-62 (6th Cir. 2001); see also United States v. Iiland, 254 F.3d 1264, 1274 (10th Cir. 2001). A conviction under the carry prong of § 924(c) requires that the defendant must have "`either (1) had physical possession of the firearm, . . . or (2) moved the firearm from one place to another'" in relation to the drug trafficking crime. Rosario v. United States, 164 F.3d 729, 734 (2d Cir. 1998) (quoting United States v. Canady, 126 F.3d 352, 358 (2d Cir. 1997)). To satisfy the "in relation to" element, there must be a "`nexus between the firearm and the underlying . . . crime.'" United States v. Munoz, 143 F.3d 632, 637 n. 5 (2d Cir. 1998) (quoting United States v. Melendez, 60 F.3d 41, 46 (2d Cir. 1995)).
The government notes that the Tenth Circuit has stated that the difference between these two standards is "slight." See United States v. Avery, 295 F.3d 1158, 1174 (10th Cir. 2002) (citing Iiland, 254 F.3d at 1271). However, the Tenth Circuit in Iiland also stated that "if the facts do not establish that a firearm was possessed `during and in relation to' a drug crime, they will not satisfy the more stringent `in furtherance of' language." 254 F.3d at 1271.
To convict a defendant under the possession prong of § 924(c), the government must establish that a firearm was possessed "in furtherance of" a drug trafficking crime, which is satisfied if the firearm in some way "helped, furthered, promoted, or advanced the drug trafficking."United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002), cert. denied, 537 U.S. 1004 (2002), cert. denied, 124 S. Ct. 1189 (2004).
When amending § 924(c), the House Judiciary Committee noted that:
[t]he government must clearly show that a firearm was possessed to advance or promote the commission of the underlying offense. The mere presence of a firearm in an area where a criminal act occurs is not a sufficient basis for imposing this particular mandatory sentence. Rather, the government must illustrate through specific facts, which tie the defendant to the firearm, that the firearm was possessed to advance or promote the criminal activity.
H.R. Report No. 105-344, 1997 WL 668339, at *12 (1997).
Four Circuits have recognized this legislative intent and held that the "in furtherance of" language requires specific evidence to support the nexus between the defendant's possession of the gun and the underlying crime charged. See, e.g., Timmons, 283 F.3d at 1253; Mackey, 265 F.3d at 462; Iiland, 254 F.3d at 1274; United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000).
Although the Second Circuit has not articulated any particular factors that should be considered in determining whether the requisite nexus exists between the possession of the firearm and the crime, United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001), other Circuits have considered various factors, including: "the type of drug activity that is being conducted, accessibility of the firearm, the type of weapon, whether the weapon is stolen, the status of possession (legitimate or illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the time and circumstances under which the gun is found."Ceballos-Torres, 218 F.3d at 414-15; see also United States v. Wahl, 290 F.3d 370, 376 (D.C. Cir. 2002); Timmons, 283 F.3d at 1253, Mackey, 265 F.3d at 462.
III. Analysis
In this case, the government did not present sufficient evidence to permit any rational juror to find beyond a reasonable doubt that the Defendant possessed a firearm within the confines of the Southern District of New York in furtherance of the narcotics conspiracy charge in Count Four. Although the evidence presented by the government, viewed in the light most favorable to it, could support a finding of possession of a firearm by the Defendant in this district, this evidence does not provide a sufficient evidentiary predicate to support the conclusion that this possession was in furtherance of the narcotics conspiracy charged in Count Four.
An evaluation of the evidence the government presented at trial, using the factors set forth in Ceballos-Torres, demonstrates that government failed to establish the requisite nexus between the Defendant's possession of the gun and the drug crime. First, in connection with the trip on the Greyhound to New York, although the government presented evidence that the suitcases of Defendant, Miller, and Moore each contained a gun, Lee testified that "we [were] not going to use the guns on the bus" and that the guns had been disassembled before packing them in suitcases for transport. (Trial Tr. at 219.) Furthermore, there is no evidence as to the location of Defendant's bag, or any other group member's luggage, within the passenger section or the luggage compartment of the bus. Thus, there is no showing of the accessibility of the guns to the Defendant or any member of the group during the trip. Moore testified that the suitcases of Lee, Miller, and himself contained marijuana. There was no evidence that the marijuana was transported to New York in the Defendant's suitcase. Therefore, two of the guns were in close proximity to the marijuana, as they were packed in Moore's and Miller's suitcases, but because there was no evidence concerning the location of the bags on the bus, it is not possible to determine the proximity of Defendant's bag to those bags containing marijuana. From this evidence, a rational juror could not conclude that Defendant's possession of an unloaded and disassembled gun on the Greyhound bus within the confines of the Southern District of New York helped, furthered, promoted or advanced the drug conspiracy.
Next, the government presented no evidence concerning the trip from the bus station to Lee's apartment in the Bronx. Although a rational juror may conclude that the Defendant carried his suitcase, there was no testimony that upon arrival at the bus station in New York that the suitcases were opened and that the guns were reassembled for the trip to Mark Lee's apartment. Nor was there testimony that the group traveled together to Lee's apartment. Therefore, there is no evidence as to the proximity of the Defendant, the guns, and the marijuana on the trip to Lee's apartment.
Finally, although the government presented evidence that the male members of the group, including the Defendant, kept their unloaded guns in the front of Lee's apartment and loaded them when the group was leaving the house to look for robbery victims (id. at 243-45; 571-72), the government did not present any evidence that the Defendant had possession of a gun, or that any gun was assembled and loaded, while the marijuana was in Lee's apartment. Nor was there evidence that the Defendant was present at or participated in the sale of the marijuana, or in anyway possessed a gun to protect the marijuana during the sale or the profits from that sale. Lee testified that he sold some of the marijuana, and both Lee and Moore testified that someone picked up the marijuana from Lee to sell it on consignment. (Trial Tr. at 222, 563-64.)
Moore testified that the Defendant was present when Lee's friends picked up the marijuana, which was to be sold on consignment, from Lee's apartment. (Trial Tr. at 564.)
Other factors from Ceballos-Torres concern details about the firearm. The government did not present evidence linking the Defendant with a specific weapon, and therefore, no characteristics of that weapon could be provided. The final factor concerns the time and circumstances under which the gun is found. The evidence only shows that the Defendant had possession of an unloaded and disassembled gun during the bus trip from Texas to New York and had possession of a gun during the attempted robbery charged in Count Two.
At most, the evidence presented by the government establishes that the Defendant possessed a firearm within the Southern District of New York. The government, however, failed to present any specific facts to show that the Defendant possessed a firearm "to advance or promote" the narcotics conspiracy charged in Count Four. H.R. Report No. 105-344, 1997 WL 668339, at *12 (1997).
The government argues that the testimony of Lee and Moore "demonstrates the defendant's intent with regard to firearms brought from Texas." (Gov't Letter, dated Oct. 27, 2004, at 11.) The government contends that the testimony of Lee and Moore concerning their use of guns in connection with their prior sales of marijuana in New York and Cleveland, none of which involved the Defendant, establishes that "guns were a tool of the trade in the selling of narcotics, providing protection to narcotics sellers." (Gov't Letter at 11.) However, this type of general "tools of the trade" evidence is insufficient to establish that this specific Defendant possessed a firearm within this district in furtherance of the drug conspiracy charged in Count Four. See Iiland, 254 F.3d at 1274 ("The fact that drug dealers in general often carry guns for protection is insufficient to show possession in furtherance of drug activity in [this] particular case.").
The Defendant argues that Moore's testimony concerning his reasons for bringing a gun to New York indicates that Moore's reference to "protection," refers to "self-protection," not protection of the marijuana. (Letter from Tai Park, Counsel for Defendant, to Court, dated Oct. 4, 2004, at 6.) Regardless of whether this testimony about his intent refers to self protection or protection of the marijuana, Moore's testimony about his intent does not demonstrate that the Defendant possessed the gun to advance or promote the conspiracy charged in Count Four.
The instant case does differ from Iiland in that nothing presented in that trial showed that the defendant "intended to use the guns, that the ever handled the guns or saw another coconspirator do so in connection with drug activities, that the firearms formed an integral part of the criminal conspiracy or the [the defendant] intended on approved their use." 254 F.3d at 1272. In this case, the evidence shows that the Defendant handled a gun and saw other co-conspirators handle a gun in connection with the marijuana robberies in Texas and the attempted robbery in New York. However, the government did not present any evidence concerning the Defendant's past experience with, or use of a gun in connection with, drug dealing or distribution.
Both Lee and Moore testified that the object of going to New York was to rob marijuana dealers, and the evidence showed that the Defendant did possess a firearm in New York in furtherance of that conspiracy. Additionally, the government presented evidence that the Defendant had participated in previous robberies of marijuana dealers that involved the use of guns. However, the government did not present any evidence that the Defendant took part in any previous drug dealing or distribution or that he participated in the previous drug dealing of Lee and Moore. Nor did the government present any evidence of conversations involving the Defendant indicating that the purpose of transporting the guns to New York was to further the conspiracy to distribute or possess with the intent to distribute marijuana. The testimony of Lee and Moore concerning their reasons for bringing guns to New York, viewed in the light most favorable to the government and considering the totality of the circumstances, does not provide a permissible inference that Defendant shared this intent. This inference is not sufficiently supported to permit a rational juror to find beyond a reasonable doubt that the Defendant intended his possession of the gun "to advance or promote" the drug conspiracy charged in Count Four. See Martinez, 54 F.3d at 1043; see also United States v. Rodriguez, ___ F.3d ___, No. 02-1488 (L), 04-0082 (CON), 2004 WL 2903897 (2d Cir. Dec. 16, 2004). The government failed to present a sufficient evidentiary predicate to support the Defendant's conviction of possession of a firearm in furtherance of the drug conspiracy, and "a conviction based on speculation and surmise alone cannot stand," D'Amato, 39 F.3d at 1256.
CONCLUSION
For the foregoing reasons, Defendant's motion for a judgment of acquittal on Count Five of the Indictment is granted.IT IS SO ORDERED.