United States v. Spector

720 F. Supp. 890, 1989 U.S. Dist. LEXIS 11761, 1989 WL 114492
CourtDistrict Court, D. Kansas
DecidedSeptember 26, 1989
DocketCrim. A. No. 89-20051-01
StatusPublished
Cited by1 cases

This text of 720 F. Supp. 890 (United States v. Spector) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Spector, 720 F. Supp. 890, 1989 U.S. Dist. LEXIS 11761, 1989 WL 114492 (D. Kan. 1989).

Opinion

MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

This matter comes before the court based on a stipulation of facts and exhibits. The defendant, Marshall A. Spector, waived his right to a jury trial. Although he does not seriously deny his guilt on the first three counts, he strenuously contends that the stipulated evidence as a matter of law is insufficient to sustain a conviction on count 4 of the indictment for using or carrying firearms during and in relation to the commission of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). For the reasons below, we find the defendant guilty of the crimes charged in the indictment.

The facts as stipulated are that the defendant made a number of sales of cocaine to an undercover officer between October 25, 1988 and December 13, 1988. All of these sales occurred in the basement recreation room of the defendant’s residence, near a bar counter. While the undercover officer observed the defendant take cocaine from a jar stored on a ceiling I-beam over the bar during each transaction, the officer never saw Marshall Spector in possession of a firearm. Based on the officer’s observations, a search warrant was executed at Marshall Specter’s residence on December 13, 1988.

Within an arms’ length of the bar and the spot on the I-beam where the cocaine was recovered, officers discovered three loaded firearms under the seat cushions of a couch: a Ruger .44 magnum, a Baret-ta .25 caliber, and an AMT .380 caliber. Also recovered from the bar were some scales and a mirror used for cutting cocaine, as well as some plastic baggies for the packaging of cocaine. Two thousand dollars was also discovered in a Plachinko game machine that was built into a wall of the laundry room. The laundry room doorway was within several feet of the bar area. Officers also found $3,000 under boxes in the corner of the laundry room and a sock inside a clothes dryer containing $4,980. Resting on a shelf above the washer and dryer were a .22 caliber Derringer and a .22 caliber Browning revolver.

Upstairs, in Specter’s bedroom, small quantities of cocaine in a glass vial and plastic baggie were recovered from a shelf above a vanity sink. Officers also seized $4,000 concealed inside a boot on the floor of a bedroom closet. On the floor of a second closet, officers recovered a .38 caliber Colt revolver. In the same room, a loaded Smith & Wesson .38 caliber revolver was discovered under a notebook laying across from the first closet. Another $3,000 was recovered from an upstairs loft room.

The issue of whether a defendant can be convicted of violating 18 U.S.C. § 924(c) when previously unobserved weapons are recovered from defendant’s residence in [892]*892close proximity to both cocaine and cash is of first impression before this court. As in all cases of statutory interpretation, we must first consider the plain language employed by Congress. Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 298, 78 L.Ed.2d 17 (1983); see also United States v. Rawlings, 821 F.2d 1543, 1545 (11th Cir.), cert. denied 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). (“When examining [section 924(c)], we must assume that Congress used the words of the statute as they are commonly and ordinarily understood.”). If the language is clear, it must be regarded as conclusive absent a contrary legislative intent. Russello v. United States, 464 U.S. at 20, 104 S.Ct. at 298.

The current language of section 924(c)(1) was added to the statute by an amendment in 1986. Prior to 1984, the statute had provided that it was a crime to carry a firearm “during the commission of any fel-ony_” 18 U.S.C. § 924(c)(2) (effective 1968). In 1984, this language was changed to require that the predicate offense be “any crime of violence” instead of “any felony.” The 1986 amendment added “drug trafficking crime” to the “any crime of violence” language. The statute now reads, in pertinent part:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....

18 U.S.C. § 924(c)(1).

The legislative history of the 1984 amendment indicates that the “in relation to” language was intended to make explicit that a person could not be prosecuted under section 924(c) for possessing a firearm during the commission of an entirely unrelated crime. S.Rep. No. 225, 98th Cong. 2d Sess. 1, 314 n. 10 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3492 n. 10. Thus, section 924(c) requires more than mere possession of a firearm. There must be some relation between the proscribed “use” of the firearm and the underlying crime. United States v. Feliz-Cordero, 859 F.2d 250, 254 (2nd Cir.1988).

The government, however, need not prove that the firearm was fired, brandished, or even displayed during the drug trafficking offense. United States v. Coburn, 876 F.2d 372, 375 (5th Cir.1989). Possession of a gun, even if it is concealed, constitutes use in relation to the drug trafficking offense if the possession is “an integral part of the narcotics offense and facilitated that offense.” United States v. Meggett, 875 F.2d 24, 29 (2d Cir.1989). As then-judge Kennedy noted in United States v. Stewart, 779 F.2d 538 (9th Cir.1985), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987):

If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or to intimidate others, whether or not such display or discharge in fact occurred, then there is a violation of the statute.

Id. at 540. See also United States v. Brockington, 849 F.2d 872, 876 (4th Cir.1988); United States v. Matra, 841 F.2d 837, 842-43 (8th Cir.1988).

In United States v. Matra, supra, 841 F.2d 837

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Bluebook (online)
720 F. Supp. 890, 1989 U.S. Dist. LEXIS 11761, 1989 WL 114492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-spector-ksd-1989.