DONOVAN JUAN MICHAELS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6270 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App.) is reported at 911 F.2d 131. JURISDICTION The judgment of the court of appeals was entered on August 13, 1990. The petition for a writ of certiorari was filed on November 13, 1990 (a Tuesday after a federal holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the jury was correctly instructed on the requirement that a firearm be used "during and in relation to" a drug trafficking offense under 18 U.S.C. 924(c). STATEMENT After a jury trial in the United States District Court for the District of Minnesota, petitioner was convicted on four counts of cocaine distribution, one count of possession of cocaine with intent to distribute it, and one count of possession of heroin with intent to distribute it, all in violation of 21 U.S.C. 841(a)(1), as well as one count of conspiracy to distribute cocaine and possess that drug with intent to distribute it, in violation of 21 U.S.C. 846, and one count of using a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). The district court sentenced petitioner to concurrent 36-month terms of imprisonment on each of the drug offenses and to a consecutive five-year term of imprisonment on the firearms offense, to be followed by a five-year term of supervised release. 1. In September 1988, undercover officer Alan Hancock of the Minneapolis Police Department purchased drugs on several occasions from petitioner's co-conspirator, Judy Butler. Butler negotiated the sales from petitioner's house and delivered the drugs using cars owned by petitioner. During her negotiations with Hancock, Butler often referred to "Don" as the source of the drugs. Gov't C.A. Br. 1-4. After two such transactions, Hancock telephoned Butler at petitioner's house to arrange a third drug purchase. This time, "Don" answered the phone and said that henceforth he would deal directly with Hancock. Don then set up two more drug sales for September 19. At the second sale that day, when petitioner (who had identified himself as Don) asked Officer Hancock if he wanted to purchase heroin, Hancock placed petitioner under arrest. Gov't C.A. Br. 4-6. The police searched petitioner's house pursuant to a warrant obtained after his arrest. In the dining room they found several scales as well as small amounts of cocaine and heroin. In a bedroom closet the police found a jacket containing heroin. A safe hidden in that closet contained a loaded pistol and about eight ounces of cocaine as well as a large amount of cash. Four more guns, including a rifle and a shotgun, were found in the closet and elsewhere in the bedroom. Gov't C.A. Br. 6-7. The district court instructed the jury that an "essential element()" of the firearms offense is "that during and in relation to the commission of the drug trafficking crime, (petitioner) carried or used a firearm." Gov't C.A. Br. 19. At three other points in its instructions, the court read the statute, telling the jury that the law made illegal the use of a firearm "during and in relation" to a drug trafficking crime. Id. at 18-19. Over petitioner's objection, the court also instructed the jury that to show "use" of the firearm, "the United States does not have to show that the defendant actually possessed a firearm," but that it need only prove that petitioner "had the power and intention to exercise dominion and control over the firearm, and that such firearm was available to (petitioner), and that such possession and availability facilitated the carrying out of" the drug offenses. Id. at 19; see Pet. 8-9. Petitioner was convicted on all counts. 2. The court of appeals affirmed. The court rejected petitioner's challenge to the jury instructions on the firearms count, holding that "(l)ooking at the instructions as a whole," they make "clear that the gun must be used during and in relation to the drug offense." Pet. App. 3. Moreover, the court explained that "(e)ven if we confined our attention to the particular passage in the instructions highlighted by (petitioner), we could not agree with his contention," ibid., because the challenged instruction "required the jury to find, at the very least, that the gun was available to (petitioner), and that its availability facilitated the carrying out of the drug trafficking crime." Ibid. ARGUMENT Petitioner contends (Pet. 9-12) that the jury instructions "fail(ed) to state that the firearm must be used 'during and in relation to' the underlying drug trafficking offense." Id. at 9. The district court, however, explicitly instructed the jury that the second "essential element()" of the offense is "that during and in relation to the commission of the drug trafficking crime, (petitioner) carried or used a firearm." Gov't C.A. Br. 19. At three other points in the instructions, the court read to the jury the language of the statute requiring the firearm to have been used "during and in relation" to a drug trafficking crime. Id. at 18-19. Even the isolated portion of the instructions to which petitioner objects required the jury to find that the "possession and availability" of the guns "facilitated the carrying out of the drug offense." Pet. 9. As the court of appeals held, therefore, the instructions "made clear that the gun must be used during and in relation to the drug offense." Pet. App. 3. /1/ Petitioner also contends (Pet. 10-11) that the availability of his firearms was too remote to support his conviction, and that the district court's instructions allowed the jury to determine "per se guilt" by mere ownership of a gun. Id. at 10. That contention is incorrect. Petitioner was shown to have been involved in drug sales that were negotiated from his house, and the evidence showed that drugs were stored there. The guns were found in the same house. Specifically, eight ounces of cocaine were found in a safe in petitioner's bedroom closet that also contained a loaded pistol; additional firearms and drugs were found elsewhere in the closet and the bedroom. This type of nexus between drugs and guns has repeatedly been found sufficient to support a conviction under 18 U.S.C. 924(c). /2/ 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 SEAN CONNELLY Attorney JANUARY 1991 /1/ The instruction was a correct statement of the law, for "it is enough (that) the firearm is present for protection and to facilitate the likelihood of success, whether or not it is actually used." United States v. Brockington, 849 F.2d 872, 876 (4th Cir. 1988); see United States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988) (defendant has "used" a firearm where the gun "was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed"). /2/ E.g., United States v. Smith, 914 F.2d 565, 567-568 (4th Cir. 1990) (defendant arrested outside hotel room; gun under mattress of bed inside room); United States v. Vasquez, 909 F.2d 235, 239-240 (7th Cir. 1990) (firearms in trunk of car under narcotics); United States v. Lyman, 892 F.2d 751, 753-754 (8th Cir. 1989) (handgun found in bag in kitchen cabinet near drug-related evidence), cert. denied, 111 S. Ct. 45 (1990); United States v. Meggett, 875 F.2d 24, 27-29 (2d Cir.) (firearms found inside cabinets and behind furniture in apartment used to store and process narcotics), cert. denied, 110 S. Ct. 166 (1989); United States v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989) (loaded shotgun in plain view in apartment used for drug transactions); United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988) (firearms found throughout house). Petitioner's reliance (Pet. 9, 12) upon United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), is misplaced, for there the district court completely failed to instruct the jury that it had to find a relationship between the gun and the drugs. The court recognized that Section 924(c) could apply where a gun "was intended to facilitate the drug operations or secure the premises where contraband and other evidence were located." 779 F.2d at 539.