GARFIELD EARL SENIOR, PETITIONER V. UNITED STATES OF AMERICA No. 90-6491 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A7) is unpublished, but the judgment is noted at 914 F.2d 254. JURISDICTION The judgment of the court of appeals was entered on September 7, 1990. The petition for a writ of certiorari was filed on December 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the indictment charging petitioner with carrying a firearm during and in relation to a drug-trafficking offense -- namely, possession of a controlled substance with intent to distribute it -- was insufficient because it did not name the controlled substance or specify petitioner's knowledge or intent in possessing it. 2. Whether the evidence was sufficient to support petitioner's conviction for carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. 924(c)(1). STATEMENT Following a bench trial, petitioner was convicted on one count of carrying a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. 924(c)(1), and was sentenced to a mandatory term of five years' imprisonment. The court of appeals affirmed in an unpublished per curiam opinion. 1. The evidence showed that, on August 5, 1987, a confidential informant reported to the Dallas police Department that he had bought cocaine at a certain apartment from a black man with an orange streak in his hair. The informant told the police that the man retrieved the drugs from under the carpeting on the stairs leading to a bedroom in the apartment. With that information, the police obtained a warrant to search the apartment. Gov't C.A. Br. 4, 19. The following day, when the officers went to the apartment to execute the search warrant, they noticed that the door to the apartment was being opened; as they neared the door, however, it suddenly slammed shut. After entering the apartment, the police found petitioner, a black male with an orange streak in his hair, alone inside. A frisk of petitioner's person revealed two loaded pistols, a 9 millimeter and a .22 caliber semi-automatic, hidden in petitioner's pants pockets, and $668 -- mostly in twenty-dollar bills -- in his shirt pocket. Upon questioning, petitioner incorrectly identified himself as "Michael Earl Don" and gave two different dates of birth. Pet. App. A2, B287-B288, B289; Gov't C.A. Br. 2-7, 19-20. The apartment looked like a "typical crack house." Pet. App. B287. Its only furnishings were a couch, a chair, a mattress, a stereo and a new VCR still in its box. There were no clothes, no cooking utensils, and no food or anything else to "indicate that (the apartment) was used as a place of habitation." Ibid. Under the stairway carpeting, where the informant had seen petitioner hide his drugs, the police found a plastic bag containing 12 vials of "crack" cocaine weighing a total of 153 milligrams. On the stair landing they found a spiral notebook that listed drug transaction data, in which was written "Michael Earl Don" and one of the birth dates given to the police by petitioner. The police also found one marijuana cigarette on top of the stereo. Pet. App. A2-A3, B287-B288; Gov't C.A. Br. 7-8, 20. Petitioner was initially charged under state law with possession of cocaine with intent to distribute it, but while released on bond he fled the jurisdiction and failed to appear on that charge. While a fugitive, he was indicted on the instant charge, and he was apprehended in Delaware in 1989. Pet. App. A3, B289; Gov't C.A. Br. 3-4, 8, 21. 2. Petitioner testified in his defense, although the district court found his testimony "not worthy of belief." Pet. App. B289. He claimed that he had driven to Dallas from Virginia to visit his girlfriend the week before his arrest. She brought him, a Jamaican, to the apartment where he was eventually arrested in order for him to meet other Jamaicans. There, petitioner alleged, he met a person named O'Neal, whom he described as a "gangster type." A friend of O'Neal's asked to borrow petitioner's car, and petitioner reluctantly lent it to him when O'Neal brandished a gun. When the borrower failed to return the car by midnight, petitioner and his girlfriend left the apartment complex. They returned every day for the next five or six days; each time, O'Neal told them that the car would be back soon. On some of these occasions, they waited inside the apartment. Petitioner saw several people there, but claimed that he never saw drugs and did not know that drugs were sold there. On the day of his arrest, he maintained, he had gone alone to the complex to await the return of his car. O'Neal agreed to help him get the car back if petitioner retrieved O'Neal's guns from the apartment. Petitioner got the guns, and was arrested as he was leaving the apartment with them. Pet. App. A3-A4; Gov't C.A. Br. 8-11. Petitioner testified that he misidentified himself to the police because they insisted that his name was Michael Don; he said that he gave a false birth date because the police told him that things would be easier for him if he were a juvenile (one of the dates would have made petitioner a juvenile). He claimed that the money he was carrying was his vacation money. He also claimed that he had jumped bond on the state charge out of fear. Pet. App. A4; Gov't C.A. Br. 11. 3. The district court found petitioner guilty of carrying two loaded pistols "during or in relation to a drug-trafficking crime, to wit: possession with intent to distribute cocaine or cocaine base." Pet. App. B287. The court found that petitioner knew he was in a crack house (Pet. App. B290), and that he had knowingly, actually, and constructively possessed the crack with intent to distribute it (Pet. App. B290-B291). 4. The court of appeals affirmed. Pet. App. A1-A7. The court rejected (Pet. App. A4-A6) petitioner's claim that the indictment was insufficient both because it failed to name the controlled substance -- cocaine or marijuana -- he had possessed and because it did not specify his mens rea in possessing it. The court held instead that the indictment "omitted no essential element, and it plainly charged the offense for which (petitioner) was convicted." The court explained that the indictment charged petitioner "with carrying a particular gun on a particular date 'during and in relation to' a predicate drug offense. . . . The nature of the controlled substance is not an element of the crime; nevertheless, it is clear from the record that all testimony concerned possession with intent to distribute cocaine." Pet. App. A5-A6. (Internal citations omitted; emphasis in original). Although the court then ruled that petitioner's failure to request a bill of particulars or challenge the indictment in the district court had resulted in the waiver of any other objections to the indictment, Pet. App. A6, it went on to consider whether the indictment improperly failed to specify the mens rea of the predicate offense. The court decided that "(a) charge of possession with intent to distribute necessarily implies a mens rea of knowledge, because one cannot form the specific intent to distribute contraband one does not knowingly possess." Ibid. Lastly, the court rejected petitioner's claim that the evidence was insufficient to support his conviction, since he had been found alone in the apartment, armed, and loaded with cash, and he had constructive possession of the drugs. Id. at A6-A7. ARGUMENT 1. Petitioner renews his contention that the indictment was insufficient because it failed to identify the controlled substance involved in the predicate offense and did not specify his mens rea in possessing it. "(A)n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974) (citations omitted); see Fed. R. Crim. P. 7(c)(1) (indictment must be "plain, concise and definite" statement of essential facts of offense). The indictment in the instant case plainly satisfies these requirements. /1/ By identifying the particular firearms that petitioner carried "during and in relation to" a drug-trafficking crime, and by specifying that crime (a violation of 21 U.S.C. 841), the indictment fairly informed petitioner of the charge against him. Contrary to petitioner's assertion, the indictment was not also required to specify the particular controlled substance involved in the drug-trafficking crime, because, as the court of appeals correctly observed, "(t)he nature of the controlled substance is not an element" of the charged offense. Pet. App. A5-A6. Instead, the elements of the offense are that petitioner possessed a firearm, and that he possessed it during and in relation to a drug trafficking crime. /2/ Petitioner, who never requested a bill of particulars, does not and cannot suggest that the indictment's failure to specify the controlled substance hindered in any way his ability to meet the charge against him. /3/ The indictment also allows petitioner to plead conviction as a bar to future prosecutions for his offense. As petitioner recognizes (Pet. 19 n.2), he may rely on the entire trial record to plead a bar in the future. Even if the indictment did not charge petitioner with enough specificity -- a contention we dispute -- the trial record leaves no doubt as to the crime of conviction. Which particular drug formed the basis of petitioner's predicate offense is irrelevant, for the indictment and trial record clearly indicate the specific firearm charge on which petitioner was tried and convicted. /4/ If the drug itself were relevant, there is no doubt that "crack" cocaine was the object of the predicate distribution offense. The police found 12 vials of separately packaged cocaine base and one marijuana cigarette. The district court, in announcing its verdict, stated repeatedly that "crack" cocaine was the drug that petitioner was distributing. Pet. App. B287, B290, B291. The court of appeals likewise noted that "it is clear from the record that all testimony concerned possession with intent to distribute cocaine." Pet. App. A6. Indeed, we doubt whether the possession of one marijuana cigarette could form the basis of a distribution charge. Petitioner also contends that the indictment improperly fails to identify the mens rea for possession of a controlled substance with intent to distribute it. We submit that petitioner has waived this objection by his failure to raise it in the district court. /5/ In any event, his argument is incorrect. As the court of appeals correctly explained, the requisite mens rea was necessarily implied by the "intent to distribute" requirement, "because one cannot form the specific intent to distribute contraband one does not knowingly possess." Pet. App. A6; cf. United States v. Metropolitan Enterprises., Inc., 728 F.2d 444, 452-453 (10th Cir. 1984) (conspiracy indictment sufficient despite failure to allege specific intent, where overt acts implied necessary intent). Moreover, the indictment charged a predicate crime under 21 U.S.C. 841(a)(1), which states that its mens rea is knowledge or intent. See United States v. Hernandez, 891 F.2d 521, 524 (5th Cir. 1989) ("(w)here statutory language is omitted, '(the) clarity of an indictment can properly be increased by its reference to the statute which allegedly has been violated'" (internal citation omitted)), cert. denied, 110 S. Ct. 1935 (1990); United States v. Stefan, 784 F.2d 1093, 1101-1102 (11th Cir.), cert. denied, 479 U.S. 1009 (1986) (failure to specify mens rea not fatal when count refers to statute stating mens rea). In the absence of any allegation -- let alone evidence -- that petitioner was prejudiced by the omission, the court was correct in affirming his conviction. See Russell v. United States, 369 U.S. 749, 763 (1962) (nonprejudicial, technical deficiency insufficient for reversal of conviction). 2. Petitioner next argues (Pet. 21-27) that the evidence was insufficient to support his conviction under 18 U.S.C. 924(c)(1). Specifically, he contends that the government failed to show that he had committed the predicate drug-trafficking crime of possessing a controlled substance with intent to distribute it. This factbound argument is without merit. It is well settled that a conviction must be affirmed if, viewing the evidence in the light most favorable to the government, any rational fact finder properly could have convicted the defendant. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Glasser v. United States, 315 U.S. 60, 80 (1942). Petitioner concedes that when he was arrested he was armed, /6/ carrying a large amount of cash in relatively small denomination bills, /7/ and staying alone in a typical "crack house" with 153 milligrams of crack cocaine packaged in 12 vials. /8/ Petitioner gave the arresting officers a false birth date and a false name, both of which were written inside of a notebook that listed drug transaction data. That notebook was found on the landing of the same stairway that concealed the vials of crack. The courts below correctly rejected petitioner's version of the events, as well as his assertion that he could not have exercised dominion and control over the cocaine because he was preparing to leave the apartment when the police seized him. As those courts determined, the evidence more than adequately supports the predicate offense of possession of drugs with intent to distribute them. Indeed, the evidence plainly demonstrates petitioner's guilt of carrying a firearm during and in relation to the drug-trafficking offense of possession of a controlled substance with intent to distribute it. /9/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney APRIL 1991 /1/ The indictment alleged that: On or about August 6, 1987, in the Dallas Division of the Northern District of Texas, the defendant, GARFIELD EARL SENIOR, did knowingly carry a firearm, to wit: a Llama, 9mm, semi-automatic pistol, serial number 36489, during and in relation to a drug trafficking crime, to wit: the possession with intent to distribute a controlled substance, in violation of Title 21, United States Code, Section 841(a)(1), for which he may be prosecuted in a court of the United States. Pet. App. A4. /2/ Because the controlled substance of the predicate offense is not an element of the firearms offense, it is irrelevant whether the Grand Jury considered cocaine or marijuana to be the object of the drug-trafficking crime. Thus, petitioner's complaint (Pet. 18-19) that he was deprived of a Fifth Amendment right to be indicted by a Grand Jury is incorrect. Petitioner was afforded that right when the Grand Jury charged him with carrying a particular firearm on a particular day during and in relation to a particular type of drug-trafficking offense. Petitioner's reliance (Pet. 18) on Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963), is misplaced. In that case, the court found objectionable a choice by the prosecutor of "one or more out of many unidentified crimes." Id. at 672. Here, in contrast, the grand jury considered only one crime -- a firearms charge -- and it was identified with particularity and clarity. /3/ The cases cited by petitioner (Pet. 16-17), none of which involved 18 U.S.C. 924(c)(1) and almost all of which involved requests for bills of particulars or pre-trial challenges to the sufficiency of the indictments, are inapposite for those reasons. Petitioner's reliance on United States v. Hinkle, 637 F.2d 1154 (7th Cir. 1981), is also misplaced. There, the defendant was charged with six violations of 21 U.S.C. 843(b) for using a telephone to facilitate drug felonies. The court found the indictment insufficient because it failed to specify either the predicate felonies or the drugs in question. The court explained that an indictment on a Section 843(b) charge requires more specificity than other idictments because "facilitation" "is intrinsically more vague" than other types of conduct, and it is therefore "especially important that what (the defendant) attempted to facilitate be spelled out." (637 F.2d at 1158). In the instant case, there is nothing vague about the weapons charge for which petitioner was indicted, and the specification of the underlying drug-trafficking crime added enough to his knowledge of the firearms charge to enable him to prepare his defense adequately. /4/ Petitioner's assertion (Pet. 17) that "a defendant may be charged with multiple (Section 924(c)(1)) offenses if his alleged use of the firearm occurs during and in relation to more than one predicate drug-trafficking crime" is therefore beside the point, for there is but one set of events relevant to petitioner's conviction. Petitioner has waived any other objection he may have to the indictment's alleged lack of specificity by his failure to raise his objections or to request a bill of particulars before trial in the district court. See Fed. R. Crim. P. 12(b)(1) (indictment defect other than failure to show jurisdiction or to charge an offense must be raised before trial); Fed. R. Crim. P. 12(f) (failure to raise timely objection to indictment defect constitutes waiver). /5/ The cases petitioner cites to support the theory that he may raise this objection for the first time on appeal are of no help to him. As petitioner himself acknowledges (Pet. 20), in United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir.) (en banc), cert. denied, 488 U.S. 842 (1988), the court held that a conviction under an indictment that omits an essential element of the offense may not stand, "provided, of course, the objection is raised before verdict" (emphasis in original). In Gov't of Virgin Islands v. Pemberton, 813 F.2d 626, 631 (3d Cir. 1987), the court held that an indictment charging the defendant with breaking and entering a building "with an intent to commit an offense therein," but not alleging the particular offense, failed to charge an offense at all, and could therefore be challenged for the first time on appeal. Pemberton does not suggest that an indictment's failure to specify the mens rea of a drug-trafficking charge constitutes a failure to charge any offense and may be challenged for the first time on appeal. /6/ Drug dealers often use firearms to protect themselves and their drugs during drug transactions. See, e.g., United States v. Anderson, 881 F.2d 1128, 1141 (D.C. Cir. 1989); United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 110 S. Ct. 166 (1989); United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988); United States v. Acosta-Cazares, 878 F.2d 945, 951-953 (6th Cir.), cert. denied, 110 S. Ct. 255 (1989); United States v. Matra, 841 F.2d 837, 842 (8th Cir. 1988); United States v. Ramos, 861 F.2d 228, 231 n.3 (9th Cir. 1988); United States v. Poole, 878 F.2d 1389, 1393-1394 (11th Cir. 1989). /7/ Petitioner suggests (Pet. 24-25) that he was carrying $268, not $668. He admits (Pet. 24), however, that testimony supported the larger amount, and both courts below determined that petitioner in fact possessed the larger amount (Pet. App. A2, B288). There is no reason to revisit those determinations. In any event, under the totality of the circumstances of petitioner's arrest, the possession of $268 would still have supported an inference that he was a drug dealer. /8/ Petitioner asserts (Pet. 23-24) that 153 milligrams of crack cocaine is too small an amount to give rise to an inference of an intent to distribute. All of the cases on which he relies, however, involved cocaine or cocaine-sugar mixtures rather than the significantly more potent cocaine base, and the cocaine in those cases was neither packaged for distribution nor surrounded by other indicia of distribution, such as being found in a crack house in which the defendant was armed, alone, and in possession of records of other drug transactions as well as a large amount of money in small denominations. Nor does United States v. Compton, 704 F.2d 739, 742 (5th Cir. 1983), help petitioner. There, the court upheld a conviction for possession of drugs with intent to distribute them where defendant possessed an ounce of high-purity cocaine and fifteen bags of less pure cocaine packaged for street sale. Contrary to petitioner's contention (Pet. 23-24), the court did not hold that "even where cocaine has been found packaged for resale, there must be additional evidence of substantial quantity before sustaining an inference that the defendant intended to distribute." /9/ Contrary to petitioner's contention (Pet. 21-22), the court of appeals properly analyzed the sufficiency of the evidence proving possession of drugs with intent to distribute them. The court recognized that the predicate drug-trafficking crime was possession of cocaine with intent to distribute it (Pet. App. A5) and held that "it is clear from the record that all testimony concerned possession with intent to distribute cocaine" (Pet. App. A6).