Nonetheless, six federal courts of appeal have spoken approvingly of what some of them denominate the "predicate offense test," which states that one drug-trafficking crime can serve as the basis for only one violation of § 924(c)(1). See, e.g., United States v. Lindsay, 985 F.2d 666 (2d Cir. 1993); United States v. Privette, 947 F.2d 1259 (5th Cir. 1991); United States v. Taylor, 13 F.3d 986 (6th Cir. 1994); United States v. Cappas, 29 F.3d 1187 (7th Cir. 1994); United States v. Smith, 924 F.2d 889 (9th Cir. 1991); United States v. Rogers, 921 F.2d 1089 (10th Cir. 1990). Some of these decisions rest upon the notion that the "purpose [of the statute] is to target those defendants who chose to involve weapons in an underlying narcotics crime;" and conclude for that reason that the drug crime is the appropriate unit of prosecution.
An indigent defendant does not have an absolute right to subpoena witnesses at the government's expense. United States v. Rogers, 921 F.2d 1089, 1094 (10th Cir. 1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Julian, 469 F.2d 371, 374 (10th Cir. 1972). Rule 17(b) requires a court to issue a subpoena when the witness' presence "is necessary to an adequate defense."
Accordingly, we have held that a single predicate offense cannot sustain multiple § 924(c) violations simply because a defendant employed multiple firearms. See, e.g., United States v. Rogers, 921 F.2d 1089, 1092-93 (10th Cir. 1990); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990). In the instant case, Morris was convicted of two Hobbs Act violations, each of which may serve as a predicate offense for a § 924(c) violation.
iness" in conspiracy to distribute cocaine, amphetamine, methamphetamine and marijuana), cert. denied, 114 S.Ct. 1861, 114 S.Ct. 2119 (1994); United States v. Garcia, 997 F.2d 1273, 1277 (9th Cir. 1993) (machine gun used to protect and embolden drug dealer found in house with a kilo of heroin, 4.5 kilos of cocaine, and 1.24 grams of cocaine base); United States v. Sims, 975 F.2d 1225, 1230 (6th Cir. 1992) (ATF agents discover two AR-15 rifles, converted to fire fully automatically, and 257 rounds of ammunition in the back seat of a car in connection with the arrest of defendants attempting to buy $337,500 worth of cocaine); United States v. Capote-Capote, 946 F.2d 1100, 1102-04 (5th Cir. 1991) (machine gun used to protect kilogram of cocaine), cert. denied, 504 U.S. 942 (1992); United States v. Moore, 919 F.2d 1471 (10th Cir. 1990) (loaded British Sten machine gun found in open closet of room containing cocaine, ziplock bags, weighing scale, dealing records, $3,400, and a calculator); United States v. Rogers, 921 F.2d 1089 (10th Cir. 1990) (same facts as recited in Moore), modified, 925 F.2d 1285 (10th Cir.), cert. denied, 501 U.S. 1211 (1991); United States v. Lucas, 932 F.2d 1210, 1223-24 (8th Cir.) (along with thirteen other guns, machine gun "kept at the ready" to safeguard crack house and facilitate illegal manufacture and trade in crack cocaine), cert. denied, 502 U.S. 869, 502 U.S. 949, 502 U.S. 991 (1991), 502 U.S. 1100 (1992); United States v. Matra, 841 F.2d 837, 839 (8th Cir. 1988) (machine gun, along with eight other weapons, made the crack house a "veritable fortress"). This rationale would not "convert the commerce power into a reserved `general federal police power'" (quoting Lopez, 115 S.Ct. at 1632).
F.2d 98, 104-105 (5th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992); United States v. Henry, 878 F.2d 937, 942-45 (6th Cir. 1989); United States v. Nabors, 901 F.2d 1351, 1357-58 (6th Cir.), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990); United States v. Clark, 928 F.2d 733, 737-38 (6th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991); United States v. Sims, 975 F.2d 1225, 1233-37 (6th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993); United States v. Taylor, 13 F.3d 986, 992-94 (6th Cir. 1994); United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir. 1988); United States v. Smith, 924 F.2d 889, 894-95 (9th Cir. 1991); United States v. Chalan, 812 F.2d 1302, 1315-17 (10th Cir. 1987); United States v. Henning, 906 F.2d 1392, 1398-99 (10th Cir. 1990); cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); United States v. Ross, 920 F.2d 1530, 1538-39 (10th Cir. 1990); United States v. Rogers, 921 F.2d 1089, 1092-93 (10th Cir. 1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Moore, 958 F.2d 310, 314 (10th Cir. 1992); United States v. Johnson, 977 F.2d 1360, 1376-77 (10th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1024, 122 L.Ed.2d 170 (1993); United States v. Parra, 2 F.3d 1058, 1070-71 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 639, 126 L.Ed.2d 597 (1993); United States v. Hamilton, 953 F.2d 1344, 1345-46 (11th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 240, 121 L.Ed.2d 174 (1992). See also United States v. Casey, 776 F. Supp. 272, 275-78 (E.D.Va. 1991), aff'd, 1992 WL 203955, 1992 U.S. App. Lexis 20232 (4th Cir. 1992).
To show necessity, a defendant must demonstrate particularized need. United States v. Rogers, 921 F.2d 1089, 1094 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991). The failure to set forth the expected testimony of a witness is an adequate ground for the denial of a request for a subpoena under Rule 17(b).
" In United States v. Rogers, 921 F.2d 1089, 1094 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991), we determined that the proper standard of review for the denial of a motion filed under Fed.R.Crim.P. 17(b) was abuse of discretion. The same standard applies to the denial of defendant's Rule 17(c) motion for pretrial production of documentary evidence.
We also have held that where a single drug-trafficking offense underlies a § 924(c) violation, multiple sentences "may not be stacked to account for each firearm seized." United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); see also United States v. Rogers, 921 F.2d 1089, 1092-93 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Ross, 920 F.2d 1530, 1538-39 (10th Cir. 1990). In the present case, the government has charged three separate § 924(c) violations with different guns listed in each count. Although the law of our circuit clearly prohibits three separate § 924(c) convictions based on the same underlying drug offense, we have not directly addressed whether multiple sentences may be based on separate counts that list several of the same or overlapping drug offenses as bases for the § 924(c) violations.
Defendant Moore's first appeal and the decision by this court is reported in United States v. Moore, 919 F.2d 1471 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991). Moore's codefendant, Larry Rogers, also appealed to this court and our decision on his appeal is reported in United States v. Rogers, 921 F.2d 1089 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991). The underlying facts of the drug trafficking activities and resulting arrests are reported fully in these opinions and need not be repeated here.
Upon examination, however, it becomes clear that these cases are inapposite. A line of cases from the Tenth Circuit also appears to so limit section 924(c). See, e.g., United States v. Rodgers, 921 F.2d 1089, 1092-93 (10th Cir. 1990); United States v. Ross, 920 F.2d 1530, 1538-39 (10th Cir. 1990); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); see also United States v. Chalan, 812 F.2d 1302, 1316-17 (10th Cir. 1987). In Nabors, the Sixth Circuit upheld separate section 924(c) sentences where each section 924(c) charge related to a different predicate offense.