United States v. Currier

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________


No. 97-2234



                          UNITED STATES,



                            Appellee,



                                v.



                 GEORGE CURRIER, JR., A/K/A GIO,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. William G. Young, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                 Selya and Lynch, Circuit Judges.



                      _____________________



    Joseph J. Balliro, Sr., with whom Balliro & Mondano and

Victoria L. Nadel were on brief, for appellant.

    Kevin J. Cloherty, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and Geoffrey E. Hobart,

Assistant United States Attorney, were on brief, for appellee.


____________________



                        August 13, 1998

                       ____________________          TORRUELLA, Chief Judge.  George Currier was arrested in

connection with a large undercover investigation and sting

operation of cocaine and methamphetamine sales involving the Boston

area Hell's Angels Motorcycle Club.  He was eventually indicted and

convicted of numerous drug trafficking crimes.  Currier appeals

only one of those counts.  The count at issue is Count Twenty,

carrying and using a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C.  924(c)(1).  Unlike

the other charges, this Count did not arise out of the undercover

investigation, but specifically out of an incident during the

execution of Currier's arrest warrant in which he drew his gun on

an arresting officer.  The narrow issue on appeal is whether

Currier's use of his revolver was "in relation to" his drug

trafficking offenses.  We agree with the district court that it

was, and therefore affirm.

                            BACKGROUND

          On September 5, 1996, the DEA concluded an investigation

into various drug trafficking activities of members of the Salem,

Massachusetts Chapter of the Hell's Angels Motorcycle Club with the

arrest of sixteen people and the execution of ten search warrants. 

Currier, who is not a member of the Hell's Angels, was arrested on

that day for his role in arranging cocaine and methamphetamine

sales with the motorcycle club.  The  924(c) charge at issue in

this case is based on events that took place during Currier's

arrest in the early morning hours of September 5, 1996.

          As the members of the Currier arrest team approached the

basement door of Currier's apartment, they loudly announced, "State

Police, DEA, Police" and knocked on the door.  When no one

responded, a Revere, Massachusetts police officer assigned to the

arrest and search team used a battering ram to make a forcible

entry into the apartment.  On his first attempt to break in the

door, the officer accidentally missed the wooden frame of the door

and broke the door window.  On his second attempt, the door lock

gave way and the door opened.  As the door opened and entry was

made, the members of the arrest team continued yelling, "State

Police, DEA, Police!"

          When Sergeant Martin Conley of the Massachusetts State

Police, a member of the arrest and search team, stepped into the

apartment he noticed a closed door just behind the open front door

to the apartment.  Sgt. Conley tried to kick open the closed door. 

Although the door initially opened, the door met with resistance

and shut.  Sgt. Conley kicked the door a second time and it opened.

          When the door opened, Sgt. Conley was staring down the

barrel of the suspect's silver revolver.  Currier, who was not

clothed at the time, was standing about four feet from the entrance

to the door in a "shooter's stance," with the gun pointed directly

at the officer.  Sgt. Conley, who also had his gun drawn, ordered

Currier to drop his weapon.  Currier remained in a shooter's

stance.  Sgt. Conley again ordered Currier to drop his weapon. 

This time, Currier took a step back and dropped his weapon.  He was

then placed under arrest.

          During the search of Currier's apartment, Sgt. Conley

discovered approximately ten ounces of methamphetamine hidden in

the drop ceiling of the bedroom, close to where Currier was

standing when he confronted Sgt. Conley.  Officers also found piles

of money in elastic bands on Currier's bed.  A total of $4,225 was

recovered from Currier's bedroom, as well as a triple beam scale. 

The arresting officers took custody of Currier's weapon, a Smith &

Wesson .357 magnum, six-shot revolver loaded with hollow-point

ammunition.

          Currier elected a bench trial on the count at issue.  At

the conclusion of the evidence and after hearing argument from the

parties, the district court found Currier guilty of violating 18

U.S.C.  924(c).  After announcing the guilty verdict, the district

court explained its verdict as follows:

            [T]he court finds beyond a reasonable

            doubt that you were at all material times

            relevant to Count 20 engaged in a drug

            trafficking offense, that is, the

            possession of methamphetamine with the

            intent to distribute it.  The court

            likewise finds beyond a reasonable doubt

            that your conduct in grabbing the weapon

            and pointing it at the police officer

            constitutes a use of the weapon. 



            The question, the closest question, is

            whether your use of the weapon was "in

            relation to" the drug trafficking offense. 

            I do not see, despite Mr. Balliro's able

            argument, that Bailey intended to retreat

            from the language in Smith v. United

            States that the gun must at least

            facilitate or have the potential of

            facilitating the drug trafficking offense. 

            The way I interpret it is -- and I believe

            beyond a reasonable doubt, that you had

            that weapon there to facilitate drug

            trafficking.  



            But I recognize that Bailey requires more. 

            That if you had not reached for the

            weapon, you could not be convicted of this

            offense.  Here, you reached for the weapon

            which you had there to facilitate the drug

            trafficking offense, and consistent with

            the reasoning in United States v.

            Tolliver, which is virtually on all fours

            with this case, I think that a guilty

            finding is . . . warranted.



            In fairness to you, however, let me say

            that I  have a reasonable doubt concerning

            whether when you snatched that weapon up

            and pointed it at a police officer, you

            had any thought at all at that instant

            about drugs or about drug proceeds.  I do

            not think that, at that time in the, in

            that frenetic moment, the government has

            proved beyond a reasonable doubt that one

            of your purposes was to get the drugs or

            the drug paraphernalia or the proceeds out

            of that apartment with you.  The most that

            I think is proved is that, beyond a

            reasonable doubt, is that you snatched up

            that weapon to get yourself out of there.



          The narrow issue on appeal is whether, in light of these

findings, the district court properly found that Currier's use of

his revolver was "in relation to" his underlying trafficking

offenses.

                             ANALYSIS

          Section 924(c)(1) of Title 18 imposes a five-year,

consecutive term of imprisonment upon any person who "during and in

relation to any crime of violence or drug trafficking crime . . .

uses or carries a firearm."  There are essentially three elements

to a  924(c) offense: (1) that the defendant committed the

predicate drug trafficking crime or crime of violence; (2) that the

defendant knowingly carried or used a firearm; and (3) that the

defendant did so during and in relation to the specified predicate

offense.  See United States v. Manning, 79 F.3d 212, 216 (1st Cir.

1996).  Currier does not deny that he committed the predicate drug

trafficking crime or that his brandishing of his revolver on the

morning of September 5, 1996, constitutes a "use" under 18 U.S.C.

 924 (c)(1).  Cf. Bailey v. United States, 516 U.S. 137, 148

(1995) (weapon must be brandished, displayed, bartered, or fired in

order to constitute "use").  He only disputes that the requisite

nexus existed, i.e., that his gun was used "during and in relation

to" his drug trafficking offenses.

          Currier acknowledges that grabbing a gun in hopes of

postponing or escaping an imminent arrest for an underlying drug

trafficking crime violates  924(c)(1).  See, e.g., United Statesv. Johnson, 87 F.3d 133, 138 (5th Cir. 1996) (per curiam).  He

argues, however, that he was only using his gun in self-defense,

and that he dropped the gun as soon as he recognized that the

police were involved.  If, indeed, Currier was using his gun only

for self-defense, and had formed no intent to evade or escape

arrest, or to facilitate his drug trafficking in any other way,

then his conviction under  924(c)(1) might well be improper.  "The

phrase 'in relation to' . . . at a minimum, clarifies that the

firearm must have some purpose or effect with respect to the drug

trafficking crime; its presence or involvement cannot be the result

of accident or coincidence."  Smith v. United States, 508 U.S. 223,

237-38 (1993).

          Currier maintains that the district court's factual

findings recited above, which he does not find erroneous, support

his self-defense claim.  The question presented in this case, then,

is whether those district court findings support Currier's self-

defense argument, or, at the very least, are ambiguous.  We

conclude that, while the findings do not explicitly reject

Currier's version of the facts, they do so unambiguously.

          The first indication that the district court rejected

Currier's self-defense argument is the statement that, "consistent

with the reasoning in United States v. Tolliver, which is virtually

on all fours with this case, I think that a guilty finding is . . .

warranted."  In United States v. Tolliver, 116 F.3d 120 (5th Cir.),

cert. denied, 118 S. Ct. 324 (1997) one of the appellants, Shane

Sterling, reached for his pistol when federal agents stormed into

his bedroom to arrest him.  See id. at 124.  Also in Sterling's

apartment at the time of the raid were drug records and a cache of

weapons. See id. at 126.  Sterling maintained that his act of

reaching for his gun was one of "misguided self-defense," not one

"in relation to" a drug trafficking offense.  In affirming

Sterling's  924(c) conviction, the Fifth Circuit noted that the

jury rejected Sterling's self-defense theory, and concluded that

his attempt to reach his gun could have facilitated the conspiracy

by preventing the arrest of a co-conspirator and "forestalling the

seizure of various instrumentalities of the conspiracy."  Id. at

125-26.  We can only conclude that the district court found

Tolliver to be "virtually on all fours with this case" because he

rejected Currier's self-defense theory and determined that his

snatching of his gun could have facilitated the underlying drug

trafficking crimes.  The district court judge would not have found

Tolliver directly applicable to the present case if he had accepted

Currier's self-defense argument.

          The second indication that the district court judge

rejected Currier's self-defense argument is his statement that "the

most that I think is proved is that, beyond a reasonable doubt, is

that you snatched up that weapon to get yourself out of there."  If

the judge had accepted Currier's version of the facts, he might

have said, "you snatched up that weapon to defend yourself," or,

"to protect yourself," or even, "because you were afraid for your

safety."  Instead, he used the language of escape when he said "get

yourself out of there."  This statement is clearly at odds with

Currier's version of the facts.

          Yet another clue to the district court's implicit

findings can be gathered from what was not said during the

announcements following the delivery of the verdict.  At no time

did the district court mention self-defense, or anything related to

self-defense.  If the district court judge had been moved to accept

Currier's argument, he would likely have so indicated in some

manner.  Instead, he reasonably assumed that he had made his

rejection of that argument clear through his Tolliver analysis, his

"get yourself out of there" comment, and, ultimately, his decision

to convict Currier on the   924(c)(1) charge.  There is nothing to

prevent this court from making the obvious inference in this case. 

The district court concluded that Currier grabbed the gun with the

intention of escaping or forestalling his arrest, and, however

short-lived that notion, his conviction under 18 U.S.C.  924(c)(1)

was proper.

                            CONCLUSION

          For the reasons stated herein, we affirm the judgment of

the district court.