United States v. Taylor

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 01-60645

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL TAYLOR; MICHAEL GIPSON,

Defendants - Appellants.

Appeal from the United States District Court For the Northern District of Mississippi USDC No. 2:00-CR-153-2-D

May 2, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Michael Taylor and Michael Gipson appeal their convictions for aiding and abetting in the use

of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 924(c). Gipson also appeals his convictions for aiding and abetting in t e po ssession of stolen h

firearms, in violation of 18 U.S.C. §§ 2 and 922(j) and possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1). Both defendants argue that the district court erred in denying

their motions for a judgment of acquittal because the evidence was insufficient to support their

respective convictions. They argue that they were convicted on the basis of inconsistent testimony

by convicted individuals, who admitted selling stolen firearms. In addition, the defendants contend

that the Government failed to produce any physical evidence of the involved drugs and firearms, and

also failed to prove that the drug allegedly involved was crack cocaine. We disagree.

Both Taylor and Gipson timely moved for judgment of acquittal following the close of the

government’s case. Thus, we review the sufficiency of the evidence to determine whether a

“reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.”

United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982); see also Jackson v. Virginia, 443 U.S. 307,

318-19 (1979). In evaluating the sufficiency of the evidence, we must review all of the evidence “in

the light most favorable to the prosecution.” Jackson, 443 U.S. at 319.

In order to uphold the defendants’ convictions for aiding and abetting in the use of a firearm

during and in relation to a drug trafficking crime, a reasonable trier of fact must have been able to

find, beyond a reasonable doubt, that Gipson and Taylor aided and abetted in (1) using or carrying

a firearm; and (2) that the use or carrying was “during and in relation to” a “crime of violence or drug

trafficking crime.” Smith v. United States, 508 U.S. 223, 227-28 (1993). Although Gipson points

to various inconsistencies between the testimony of Randy Tidwell and John Hitchcock, the sellers

of the stolen firearms, their testimony was consistent insofar as they both testified that they exchanged

stolen weapons for crack cocaine supplied by Gipson. Based on this testimony, the jury could have

-2- found both required elements of the offense with regard to Gipson. Gipson also argues that bartering

drugs for firearms does not constitute a “use” of the firearms within the meaning of 18 U.S.C. §

924(c). This court has determined otherwise, and we are bound by that precedent. See United States

v. Ulloa, 94 F.3d 949, 956 (5th Cir. 1996) (“By bartering drugs for firearms, . . .Ulloa thus ‘used’

the firearms within the meaning of § 924(c)(1).”).

Taylor argues that there was no evidence establishing that he was personally involved in the

drugs-for-guns transaction. However, the uncontradicted evidence shows that Taylor was present

during the negotiations, understood the terms of the trade, requested that Gipson purchase the gun

for him, and told Gipson he would pay him back for it. Thus, the government presented sufficient

evidence to support Taylor’s conviction. See United States v. Laury, 49 F.3d 145,151 (5th Cir.

1995) (holding that to prove aiding and abetting, the Government must establish that the defendant

“(1) associated with the criminal enterprise; (2) participated in the venture; and (3) sought by action

to make the venture succeed.”). In sum, the jury could reasonably have concluded, based on the

evidence, that both Gipson and Taylor were guilty of aiding and abetting in the use of a firearm during

and in relation to a drug trafficking crime.

Gipson also argues that the evidence was insufficient to support his conviction for aiding and

abetting in the possession of a stolen firearm in violation of 18 U.S.C. §§ 2 and 922(j). The evidence

presented at trial was sufficient for a rational trier of fact to find beyond a reasonable doubt that the

guns were stolen in Arkansas, and transported across state lines into Mississippi. The testimony also

showed that Gipson was aware that the guns were st olen in Arkansas and that Gipson aided and

abetted in the purchase of the stolen weapons by providing crack cocaine as payment for the firearms.

Thus, the Government presented sufficient evidence from which a reasonable jury could conclude that

-3- Gipson was guilty of this offense.

Finally, Gipson challenges the sufficiency of the evidence supporting his conviction for being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In order to support Gipson’s

conviction, there must be sufficient evidence establishing (1) “that the defendant was a convicted

felon; (2) that he possessed a firearm in or affecting interstate commerce; and (3) that he knew that

he possessed a firearm.” See United States v. Baptiste, 264 F.3d 578, 589 n.8 (5th Cir. 2001).

Gipson has not disputed that he is a convicted felon. There was sufficient evidence t prove t hat o

Gipson was knowingly in possession of firearms that had traveled in interstate commerce. Thus, there

was sufficient evidence to support his conviction under 18 U.S.C. § 922(g).

For the foregoing reasons, the convictions of Taylor and Gipson are AFFIRMED.

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