ALAN THORPE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6114 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-10a) is reported at 912 F.2d 159. JURISDICTION The judgment of the court of appeals was entered on August 31, 1990. The petition for a writ of certiorari was filed on October 31, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the evidence at trial was sufficient to sustain petitioner's conviction for using and 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 jury trial in the United States District Court for the Southern District of Ohio, petitioner was convicted of conspiring to maintain a place to distribute cocaine base, in violation of 21 U.S.C. 846 and 856(a); possessing cocaine base with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). He was sentenced to 60 months' imprisonment, to be followed by three years of supervised release. /1/ The court of appeals affirmed in part and reversed in part. 1. On March 3, 1988, police officers executed a search warrant at an unoccupied apartment in Columbus, Ohio. The interior of the apartment was heavily fortified and barricaded with plywood boarding in a manner commonly found in "crack houses." During the search, the officers found two loaded 9-mm. semi-automatic weapons, but no drugs. The officers subsequently determined that the apartment was leased to a fictitious person. Pet. App. 2a; Gov't C.A. Br. 3. One week later, on March 10, the police officers sent an informant into the apartment to purchase crack cocaine with marked money. The informant returned with crack cocaine ten minutes later. Shortly afterwards, a SWAT team of officers executed a second search warrant for the apartment. After entering the premises through the second floor windows, they proceeded down to the first floor dining room, where co-defendant Morris Pearce was sitting on a couch. Next to Pearce on the couch was a paper bag containing the marked money given to the informant and 3.4 grams of crack cocaine. Also next to Pearce were another paper bag containing crumpled cash, a plastic baggie containing marijuana, two hand-held walkie-talkies, and a CB radio. Two folded $50 bills were underneath the couch, and a stun gun was on top of the television set. Pet. App. 2a-3a; Gov't C.A. Br. 3-6. As the officers entered the dining room, they saw and heard another individual run down the stairs into the basement yelling, "It's a bust, it's a bust." When they reached the basement, the officers saw petitioner near an open floor drain. The officers subsequently found a unit dose of .22 grams of crack cocaine on a shelf in a closet at the top of the basement stairs. The officers found another two unit doses of 1.28 grams of crack cocaine in the open floor drain in the basement where they encoutered petitioner. Nearby, the officers saw a .38 caliber revolver, which was fully loaded, sticking out from underneath the hot water tank. They found a second long-barreled .38 caliber revolver, which was loaded except for one empty cyclinder, at the base of the furnace where a panel was missing. Pet. App. 2a-3a; Gov't C.A. Br. 3-6. Petitioner was searched at the scene after he was arrested. In his pocket was a live 9-mm. round of ammunition that matched the five rounds of ammunition in the long-barreled .38 caliber revolver found by the furnace in the basement. Pet. App. 3a; Gov't C.A. Br. 6-7. 2. The court of appeals affirmed in part and reversed in part. Pet. App. 1a-10a. It concluded that the evidence was insufficient to sustain petitioner's conspiracy conviction because "(t)he record (was) devoid of any evidence that (petitioner) and Pearce had entered into an agreement." Id. at 5a. Finding no evidence of a connection between petitioner and Pearce other than their presence in the apartment together, the court similarly concluded that the evidence was insufficient to sustain petitioner's conviction for aiding and abetting Pearce in the distribution of crack cocaine. The court accordingly reversed petitioner's conviction for conspiracy and his "aiding and abetting" conviction. Pet. App. A6. The court added, however, that it was affirming petitioner's "possession conviction()." Id. at A2. That disposition left it unclear whether the court had affirmed or reversed petitioner's conviction on Count 2, the count that charged him with possession of cocaine base with the intent to distribute it. The court's judgment does not resolve that issue. See App., infra. There have been further proceedings in the district court and in the court of appeals directed at resolving this ambiguity in the court of appeals' opinion. /2/ The court affirmed petitioner's conviction for using and carrying a firearm during and in relation to a drug trafficking crime. Pet. App. 7a. It rejected petitioner's contention that the evidence was insufficient to establish that he carried or had control over the weapons in the house: "The arresting officer testified that the weapons were openly visible; thus, the fact that (petitioner) placed himself so that the weapons were within reach, given the matching ammunition in his pocket, is enough to support an inference that (petitioner) controlled weapons to be used for protection during drug-related transactions." Ibid. ARGUMENT Petitioner contends that his firearms conviction under 18 U.S.C. 924(c) should be reversed in light of the court of appeals' action on his convictions on the drug conspiracy count and the related substantive count of possession with intent to distribute crack cocaine. /3/ Since the court of appeals found that the evidence at trial was insufficient to sustain his convictions on the charges of conspiracy and aiding and abetting, petitioner maintains that the evidence was necessarily insufficient to establish a predicate "drug trafficking crime" during and in relation to which he carried or used the firearms found in the basement of the apartment. Pet. 14-17. That claim does not warrant review by this Court, for several reasons. 1. To begin with, the court of appeals did not rule, as petitioner claims, that a defendant can be convicted of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1), without also being guilty of a drug trafficking offense. Petitioner did not present that precise question to the Sixth Circuit. Petitioner argued on appeal that the evidence was insufficient to support his convictions on the conspiracy (Count 1), possession (Count 2), and firearm (Count 3) counts in the indictment. Br. of Appellant vi, 12-31. But petitioner did not contend that if the evidence was insufficient to support his convictions on Counts 1 and 2, then he was entitled to an acquittal on Count 3 as a matter of law -- the claim that petitioner has presented in his certiorari petition. Under these circumstances, and in the absence of any discussion of the point by the court, the court of appeals cannot be said to have ruled on the question on which petitioner has sought review in this Court. Moreover, it is not entirely clear from the opinion and judgment of the court of appeals that the court has reversed petitioner's conviction on Count 2, which is the premise for petitioner's argument in this Court. See page 4, supra. The court of appeals has that question before it in petitioner's clarification motion. See page 4 note 2, supra. Review at this time is therefore premature. 2. In any event, petitioner's claim lacks merit, regardless of how the Sixth Circuit rules on his clarification motion in connection with Count 2. Petitioner's challenge to Count 3 rests on the erroneous premise that a defendant is also convicted of an 18 U.S.C. 924(c)(1) unless the defendant is also convicted of an underlying drug trafficking crime. It is not necessary for the defendant to be convicted of a particular charged drug offense in order for him to be convicted of a Section 924(c)(1) offense. It is necessary only that the jury find that the defendant carried or used a firearm in connection with some drug trafficking offense. See United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989), cert. denied, 110 S. Ct. 1159 (1990). The court of appeals apparently determined that, although the evidence was insufficient to establish petitioner's guilt under an aiding and abetting theory, the evidence established that petitioner had possessed drugs. See Pet. App. A2 ("(W)e reverse as to the conspiracy and aiding and abetting charges. We affirm Thorpe's and Pearce's possession convictions and Thorpe's firearms conviction.") (emphasis added). Thus, it appears that the court of appeals found the evidence insufficient to prove that petitioner aided and abetted Pearce's possession of drugs, but that the evidence was sufficient to show that petitioner possessed drugs himself with the intent to distribute them. That possession could properly serve as the underlying drug trafficking crime for Count 3. Even if the court of appeals did not mean to hold that the evidence was sufficient to establish that petitioner possessed cocaine with the intent to distribute it, however, the evidence was in fact sufficient to establish that predicate for petitioner's Section 924(c)(1) conviction. The evidence showed that petitioner was present in an apartment that was serving as a "crack house" and that Pearce was plainly engaged in the distribution of crack cocaine from the apartment. Shortly before the SWAT team of officers entered, an informant purchased crack cocaine at the apartment with marked money. When the officers entered the apartment, petitioner was with Pearce in the dining room, where the marked money, additional amounts of crack cocaine, and wads of crumpled cash were found in paper bags on the couch. As the officers approached, a person fled from dining room yelling, "It's a bust, it's a bust." From the evidence, the jury could infer that it was petitioner who fled from the dining room, and that when he reached the basement, he attempted to hide or dispose of the two revolvers and three dosage units of crack cocaine. Accordingly, the evidence went beyond showing that petitioner was merely present in the apartment at the time of the raid. The jury was entitled to find from petitioner's behavior at the time of the raid that he was guilty of possessing crack cocaine with the intent to distribute it. In addition to showing that petitioner was engaged in a drug trafficking crime, the evidence permitted the jury to infer that petitioner carried and used the two revolvers found in the basement during and in relation to that offense. As the court of appeals noted, Pet. App. 7a, the evidence that the two revolvers (one of which was fully loaded and the other of which was partially loaded) were openly visible and within petitioner's reach in the basement, along with the evidence that petitioner was carrying ammunition for the partially loaded revolver in his pocket, was sufficient to establish that petitioner had control over the revolvers for use in connection with his drug-related transactions. In sum, regardless of the ultimate disposition of Count 2 -- or the correctness of the court of appeals' decision with respect to the conspiracy and substantive drug charges -- the evidence was sufficient to establish all the elements of the firearms offense charged in Count 3. Further review is therefore unwarranted. 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 JOSEPH C. WYDERKO Attorney JANUARY 1991 /1/ Petitioner was sentenced to concurrent terms of 21 months' imprisonment on the two drug counts and a consecutive term of 39 months' imprisonment on the firearms count. /2/ After the court of appeals' decision, petitioner moved in the district court for a dismissal of the firearms charge, Count 3, on the ground that he could not be convicted of that charge if he was acquitted of the two drug charges contained in Counts 1 and 2. On December 21, 1990, the district court entered an order denying petitioner's motion. App., infra. The court explained that the Sixth Circuit had upheld petitoner's conviction on the firearms charge, that it was bound by the court of appeals' mandate, and that it was unclear whether the court of appeals had vacated petitioner's conviction on Count 2. On December 27, petitioner filed with the Sixth Circuit a motion seeking clarification of the mandate. /3/ 18 U.S.C. 924(c)(1) provides in pertinent part: Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime, be sentenced to imprisonment for five years * * * . Section 924(c)(2) defines "drug trafficking crime" to mean "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)."