United States v. Crass

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________

        No. 94-1789

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    MICHAEL CRASS,

                                Defendant, Appellant.

                                                     
                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
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Torruella, Chief Judge,
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                            Aldrich, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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Edward C. Roy, with whom Roy & Cook was on brief for appellant.
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             Zechariah Chafee,  Assistant  United States  Attorney, with  whom
             ________________
        Sheldon Whitehouse, United States Attorney, was on brief for appellee.
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                                    March 24, 1995
                                                     
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CYR, Circuit Judge.  Appellant Michael Crass challenges
                    CYR, Circuit Judge.
                         _____________

          his conviction and  sentence for  using a firearm  during and  in

          relation to  a  drug trafficking  crime.   See  18 U.S.C.     924
                                                     ___

          (c)(1).  Finding no error, we affirm.

                    On  June  4,  1993,  the  Providence  Police Department

          executed a search warrant  at the Crass apartment and  discovered

          marijuana  and  cocaine  throughout.1   On  a  closet shelf,  the

          police  found  seventeen  baggies  of cocaine  and  two  pistols.

          Although  the  hand grip  on one  firearm  was broken,  both were

          loaded  and operable.    The  putative  owner testified  for  the

          defense  that he  had left  one unloaded  firearm with  Crass for

          repair six months prior  to the search,  and the other for  safe-

          keeping a week before the search. 

                    Crass first challenges the sufficiency of the evidence,

          which  we  review in  the light  most  favorable to  the verdict.

          United States  v. Cotto-Aponte, 30  F.3d 4,  5  (1st  Cir. 1994).
          _____________     ____________

          Notwithstanding  their proximity  to the  baggies of  cocaine, he

          contends on appeal, as he  did below, that the firearms  were not

          used  during and in relation  to a drug  trafficking crime within

          the meaning  of 18 U.S.C.   924(c)(1).   He principally relies on

          United States v. Bruce, 939 F.2d  1053 (D.C. Cir. 1991), for  the
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          claim  that there  was insufficient  evidence of  a "facilitative

          nexus," see United States  v. Paulino, 13  F.3d 20, 26 (1st  Cir.
                  ___ _____________     _______

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               1Crass pled guilty to  three drug trafficking offenses based
          on the evidence seized from his apartment.

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1994), between the firearms  and the drugs found in  the closet.2

Under  our  "facilitative nexus"  test, a  section 924-

          (c)(1) conviction may lie even though the evidence establishes no

          more than that  a firearm served a passive purpose  during and in
                                             _______

          relation to  the commission of  a drug crime,  as by  affording a

          means  of safeguarding  drugs  possessed for  distribution.   The

          close  proximity  between the  firearms  and  the cocaine  seized

          inside  the same closet enabled the jury reasonably to infer that

          Crass  kept  the firearms  for  the purpose  of  safeguarding the

          cocaine,  see United States v.  Bergodere, 40 F.3d  512, 519 (1st
                    ___ _____________     _________

          Cir.  1994),  clearly  establishing the  necessary  "facilitative

          nexus."  See Smith v. United States, 113 S. Ct. 2050 (1993).
                   ___ _____    _____________

                    Second, Crass claims surprise and prejudice from police

          testimony concerning  the street value  of the cocaine  seized in

          the search.  At a pretrial  hearing on his request for disclosure

          of expert testimony to  be presented by the government,  see Fed.
                                                                   ___

          R. Crim.  P. 16(a)(1)(E), Crass  sought to ascertain  whether the

          government  intended  to  have  "police officers  com[e]  in  and

          testify[] about giving  opinions about  the use of  the guns  and
                                                  ___ ___ __  ___ ____

          being  consistent with their experience and  that kind of thing."

          (emphasis added).  The government disavowed any such intention. 

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               2Neither party noted that Bruce had been overruled in United
                                         _____                       ______
          States v. Bailey,  36 F.3d 106,  115 (D.C. Cir.  1994) (en  banc)
          ______    ______
          (Ginsburg, J.), cert. denied, 63 U.S.L.W. 3642 (U.S. 1995), which
                          ____  ______
          explicitly adopted our "facilitative nexus" test.  

                                          3



At trial,  the government  presented a  narcotics offi-

          cer's testimony on  the current  street value of  the seized  co-

          caine,  for the purpose of establishing  that Crass possessed the

          firearms as a means of safeguarding the valuable cocaine stash he

          kept in the  apartment.  Crass later urged the  district court to

          exclude  the  testimony  because it  had  not  been  disclosed in

          response to  the Rule 16 motion.   The court declined.   It ruled

          that the  testimony did  not come within  the pretrial  discovery

          request, that it was on the cusp of fact and expert testimony and

          that  defense counsel  would be  allowed to  "cross-examine about

          [the  expert witness's] experience in this area and what he knows

          about street prices of drugs."          The   duty  to   disclose

          under Rule 16 is triggered by a proper request.  United States v.
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          Carrasquillo-Plaza,  873 F.2d 10, 12  (1st Cir. 1989).   The dis-
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          trict  court  supportably  ruled,  inter alia,  that  the  police
                                             _____ ____

          testimony proffered by  the government  did not  come within  the

          pretrial  motion submitted  by the  defense, because  it directly

          related to  the street value of  the seized drugs  and only indi-

          rectly to  the purpose for which  Crass kept the guns.   Yet more

          importantly, the  defense  neither  requested  a  continuance  to

          obtain its own evidence on street drug prices, nor does it allege
                                                                     ______

          prejudice.  Even on appeal Crass makes  no claim that the "street

          price" for cocaine in Providence was different than the narcotics

          officer  stated.  See United  States v. Sepulveda,  15 F.3d 1161,
                            ___ ______________    _________

          1178 (1st Cir. 1993) ("The lack  of demonstrable prejudice sounds

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the death knell  for a  'delayed discovery' claim.").   Thus,  we

          find neither error nor prejudice.  

                    Third, Crass claims that he was entitled to a two-point

          downward adjustment for acceptance of responsibility  pursuant to

          U.S.S.G.   3E1.1.  The defendant  bears the burden of proof under

          section 3E1.1 and we review the sentencing court ruling for clear

          error.   United  States v.  Morillo, 8  F.3d  864, 871  (1st Cir.
                   ______________     _______

          1993).         Although  Crass  acknowledges that  the Sentencing

          Guidelines generally  preclude a  downward adjustment  for accep-

          tance of responsibility where  the defendant "puts the government

          to its burden of proof at trial  by denying the essential factual

          elements of guilt, is  convicted, and only then admits  guilt and

          expresses  remorse," U.S.S.G.    3E1.1 (n.2),  he argues  that he

          fits within an exception to the general rule.

                    In  rare situations  a defendant  may clearly
                    demonstrate  an acceptance  of responsibility
                    for his criminal conduct even though he exer-
                    cises  his constitutional  right to  a trial.
                    This may occur,  for example, where a  defen-
                    dant  goes to  trial to  assert  and preserve
                    issues  that do not  relate to  factual guilt
                    (e.g. to make a constitutional challenge to a
                    statute or a  challenge to the  applicability
                    of a statute to his conduct.)

          Id.  Crass contends  that he qualified for a  downward adjustment
          ___

          for  acceptance of responsibility  notwithstanding the  fact that

          the defense  represented, both at  trial and at  sentencing, that

          the firearms were in  no respect related to the  drug trafficking

          offenses to which he had pled guilty.

                    The district  court correctly instructed the  jury that

          Crass could be convicted  only if he possessed the  firearms with
                                                                       ____

                                          5



intent to  facilitate drug trafficking.  United  States v. Reyes-
          ______ __  __________                    ______________    ______

          Mercado, 22 F.3d 363, 367 (1st Cir. 1994) (defendant must possess
          _______

          firearm with intent that it be "available for possible use during

          or immediately following the  transaction, or [to facilitate] the

          transaction by lending courage to the possessor.").  In an effort

          to  blunt  the  government's case  on  the  essential  element of

          intent, the defense  called the putative  owner of the  firearms,

          who testified that he had delivered  them to Crass for repair and

          safekeeping.   Further, defense  counsel urged  the jury  to find

          that the firearms were not possessed with intent to safeguard the
                                                    ______

          drugs.

                    Thus,  as was  his right,  Crass contested  the central

          factual  element of intent both at trial  and at sentencing.  But
          _______             ______

          the jury could  not have  convicted Crass on  the firearm  charge

          without  first  rejecting the  claim that  he  did not  intend to

          possess the firearms for  the purpose of safeguarding  the drugs.

          See  id.  Except in extraordinary circumstances not present here,
          ___  __

          see  U.S.S.G.   3E1.1  (n.2),  intent, like  any other  essential
          ___                            ______

          element of the crime charged, may  not be contested by the defen-

          dant without jeopardizing  a downward adjustment  for "acceptance

          of responsibility" in the event the sentencing court  rejects, as

          did  the jury,  the  defendant's interpretation  of the  relevant

          evidence.  See United  States v. Bennett,  37 F.3d 687, 697  (1st
                     ___ ______________    _______

          Cir.  1994).  The district  court ruling was  consistent with the

          law and the evidence.

                    Affirmed.    
                    Affirmed.
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