United States v. Castano

543 F.3d 826, 2008 U.S. App. LEXIS 21019, 2008 WL 4470849
Court of Appeals for the Sixth Circuit·Decided October 7, 2008·No. 06-1720·Published·Cited by 42 cases

Opinions

MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. ROGERS, J. (pp. 838^41), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendanb-Appellant Victor Castaño (“Castaño”) appeals his convictions on charges of felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Castaño raises two arguments in his appeal. First, Castaño challenges the sufficiency of the evidence as to each of the two convictions. Second, Castaño argues that errors in the verdict form and jury instructions for the § 924(c) charge amounted to plain error requiring reversal of that conviction. In particular, Castaño argues that because the verdict form and portions of the jury instructions referred to the charge as being the “possession” of a firearm “during” a drug trafficking crime — which is a non-existent offense — substantial doubt exists as to whether the jury possibly convicted Casta-ño of that non-existent offense instead of the § 924(c) charge on which he had been indicted, that of carrying a firearm during and in relation to a drug trafficking crime.

For the reasons set forth below, we REVERSE Castano’s § 924(c) conviction, AFFIRM his § 922(g) conviction, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. Procedural History

On June 17, 2004, police officers working for the St. Clair County (Michigan) Drug Task Force arrested Castaño. The officers arrested Castaño after making a traffic stop on the basis of a tip provided by a confidential informant that a man named ‘Victor” would be making a large-scale marijuana transaction at the Norway Bar in Avoca, Michigan. The confidential informant told the officers that the man would be driving a black and white pick-up truck with a specific license-plate number and that marijuana would be in a box in the back of the truck.

When the officers pulled over the truck, they found that Castaño was driving and that his girlfriend, Melissa Sue Gordon (“Gordon”), was a passenger inside the truck. After stopping the truck and requesting that Castaño and Gordon exit the vehicle, an officer observed in the bed of the truck a large box, which the officer was able to ascertain contained marijuana. The officers searched Castaño and found that he was carrying $1,749 in cash; the officers’ search of the truck revealed a loaded .44-caliber Smith & Wesson revolver in the truck’s center console, positioned within easy reach of the driver.

[829]*829On June 17, 2005, a federal grand jury indicted Castaño and Gordon, charging both with one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). The Indictment also charged Castaño with one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and one count of “carrying] a firearm ... during and in relation to a drug trafficking crime,” in violation of 18 U.S.C. § 924(c). Joint Appendix (“J.A.”) at 12-14 (Indictment at 1-3).

Castaño filed a motion to suppress the evidence that the officers seized from the truck when they arrested Castaño. After holding an evidentiary hearing, the district court denied Castano’s motion to suppress. In his appeal, Castaño does not challenge the denial of his motion to suppress.

On February 21, 2006, the morning of trial, Castaño pleaded guilty to the charge of possession with intent to distribute marijuana. The trial therefore involved the government’s case against Gordon on the charge of possession with intent to distribute marijuana and against Castaño on the charges of felon in possession of a firearm and carrying a firearm during and in relation to a drug trafficking crime. Castaño moved for a judgment of acquittal at the close of the government’s case and again prior to submission of the case to the jury, and the district court reserved decision on the motions. On February 23, 2006, the jury convicted Castaño on both firearm-related charges and also convicted Gordon on the charge of possession with intent to distribute marijuana. Castaño renewed his motion for acquittal on March 2, 2006, but the district judge denied the motion.

The district court sentenced Castaño to a total of 102 months in prison. Castano’s trial counsel timely filed a notice of appeal.1

B. Evidence at Trial

At trial, the government presented evidence that in June 2004 Castaño was in the business of selling large quantities of marijuana in the area of Port Huron, Michigan. On June 17, 2004, Castaño planned to deliver fifty pounds of marijuana to a man named Delbert Rush at the Norway Bar in Avoca, Michigan. Castaño obtained the fifty pounds of marijuana from a source he identified as a man named “Julio,” who gave Castaño the marijuana in exchange for Castano’s promise to pay Julio $800 per pound after Castaño re-sold the marijuana.

To transport the marijuana, Castaño borrowed a black 1995 Dodge pick-up truck from William Lonsby (“Lonsby”), an acquaintance from the Devil’s Diciples Motorcycle Club.2 Castaño told Lonsby that he needed the truck to move his motorcycle.

Lonsby testified that he habitually cleaned his truck before loaning it to friends and that, prior to loaning the truck to Castaño, he cleaned the glove box as well as the center console before leaving the truck in his driveway for Castaño, with the keys in the ignition. Lonsby testified that he was not aware of any gun in the truck when he left it for Castaño on the night of June 16, 2004.

[830]*830After taking the truck on the morning of June 17, 2004, Castaño drove to Mercy Hospital in Port Huron, Michigan, where he spent three hours being treated for high blood pressure, numbness in his arm, and a headache. Castaño then checked himself out of the hospital against medical advice.

At some point during the day of June 17, 2004, Castano’s girlfriend, Gordon, joined him, and the two drove to a store where, at 2:36 p.m., Gordon purchased three boxes of twenty-count Glad Lock one-gallon size storage bags. Castaño and Gordon used the bags to package the marijuana, which had been kept in a storage unit in Clinton Township, and they placed the packaged marijuana into a large cardboard box. They then loaded the cardboard box containing fifty pounds of marijuana into the truck and Castaño drove them to the Norway Bar, where he planned to sell the marijuana to Delbert Rush. Alerted by a confidential informant, members of St. Clair County (Michigan) Drug Task Force monitored the bar and observed Castaño and Gordon arrive in a black pick-up truck bearing a license plate matching the description that the informant had provided.

The drug deal apparently fell through; after half an hour, Castaño and Gordon left the bar with the marijuana still in the box in the back of the truck.

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United States v. Castano, 543 F.3d 826, 2008 U.S. App. LEXIS 21019, 2008 WL 4470849 (6th Cir. 2008).

543 F.3d 826 (United States v. Castano) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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