Opinion
Civ. No. 99-781, SECTION "I".
January 25, 2000.
ORDER AND REASONS
Before the court is Henry Lee's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Lee contends that he is innocent of his 1989 conviction under 28 U.S.C. § 924(c) for using a firearm as defined by Bailey v. U.S., 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and that his conviction is therefore a violation of due process and fundamental fairness.
This court previously ruled that Lee is entitled to bring this petition notwithstanding his prior petitions for writ of habeas corpus. See Lee v. Wetzel, 49 F. Supp.2d 875 (E.D.La. 1999).
The superseding indictment charged Lee with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), conspiracy to commit this offense in violation of 21 U.S.C. § 846, and using and carrying firearms, described as a MAC-11 millimeter semi-automatic pistol and an AMT .380 caliber (9 millimeter kurz) semi-automatic pistol, during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Lee's co-defendants were Timmy Cobbins, Fitzgerald Johnson, and Todd Cooper. The jury acquitted Cooper, and convicted Cobbins, Johnson, and Lee on all three charges.
At trial the evidence established a drug transaction involving 2 kilograms of cocaine worth approximately $44,000. The transaction took place in a hotel room at the Radisson Hotel. When making the arrests, the agents found the two firearms. The .380 was found a few blocks from the hotel beneath the seat of a car in which Cobbins and Johnson had attempted to flee the scene. As the agents approached the car, Cobbins and Johnson were observed to be reaching under the front seat. The agents also recovered ammunition from beneath the front seat. The weapon and car belonged to Cobbins.
The other firearm, a loaded MAC-11, was recovered next to Brian Smith's body. Smith fell to his death from the hotel balcony while trying to escape the agents. This gun was owned by co-defendant Cooper, who was acquitted at trial by convincing the jury that the gun was purchased in connection with the production of a music video. See United States v. Cobbins, No. 90-3075 (5th Cir. May 31, 1991)
Lee arrived at the scene of the drug transaction in a separate automobile from the one used by Cobbins and Johnson. He was accompanied by the confidential informant. Lee remained in the car while the informant went inside the hotel. Lee never left the car during the transaction; he was not arrested until two weeks later.
The jury instructions charged the jury that using or carrying a firearm in relation to a drug trafficking crime violates section 924(c)(1). The court defined the term "use" in accordance with the pre-Bailey standard used by the Fifth Circuit at the time of trial, but did not define the term "carry." The court also instructed the jury in accordance with the Pinkerton doctrine of co-conspirator liability. Id., at 6-7.
The jury convicted Cobbins, Johnson, and Lee of the conspiracy charge, resulting in all three defendants being found guilty of all substantive offenses committed in furtherance of that conspiracy. In Lee's case, that meant the jury could and did find him guilty of possession of cocaine and using and carrying firearms in relation to a drug trafficking crime, even though Lee did not actually use and carry either the guns or the cocaine.
Lee argues that because the evidence does not show that he "used" a firearm in accordance with the Bailey definition of "use," that is, there is no evidence that he actively employed a firearm during and in relation to the predicate crime, he is actually innocent of the crime charged.
When an indictment charges a defendant with both using and carrying weapon, the conviction is proper if the evidence supports either using or carrying, notwithstanding an erroneous pre-Bailey "use" instruction. See United States v. Brown, 161 F.3d 256 (5th Cir. 1998). Therefore, Lee's conviction is sustainable if sufficient evidence exists to support the "carry" element.
Bailey recognized that "[t]he `carry' prong of § 924(c)(1) brings some offenders who would not satisfy the `use' prong within the reach of the statute." 516 U.S. at 150, 116 S.Ct. at 509. The Supreme Court has recently ruled that "carrying," for purposes of section 924(c), broadly includes the possession of a firearm in a trunk or a glove compartment, even if not "readily accessible." See Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 1916-19, 141 L.Ed.2d 111 (1998)
While the evidence at trial does not show that Lee used or carried a weapon himself, the evidence does support a finding that one or more of Lee's co-conspirators carried a weapon in furtherance of the conspiracy. As stated by the Fifth Circuit in ruling on Lee's appeal from his conviction:
[a]s the DEA agents stopped Johnson and Cobbins and approached their car, the two defendants appeared to be reaching under the front seat. A .380 semi-automatic pistol, later identified as belonging to Cobbins, and ammunition were recovered from beneath the seat. Moreover, a loaded MAC-11 9mm semi-automatic pistol was recovered next to Brian Smith's body. This evidence is sufficient to convict all three defendants of the firearms offense, either directly or under the Pinkerton doctrine.Cobbins, No. 90-3075 at 7.
This decision binds the court under the "law-of-the case" doctrine. See United States v. Castillo, 179 F.3d 321, 326-27 (5th Cir. 1999). The Fifth Circuit's ruling as to the "carry" aspect of the weapons conviction is unaffected by the subsequent decision in Bailey and, as discussed below, is not clearly erroneous.
Under the Pinkerton doctrine a defendant convicted of conspiracy is liable for the reasonably foreseeable acts of his co-conspirators committed in furtherance of the conspiracy, even if the defendant does not participate in those acts or have any knowledge of them. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Elwood, 993 F.2d 1146, 1151 (5th Cir. 1993) (quotations omitted). Thus, the fact that Lee had no actual knowledge of the weapons does not absolve his criminal responsibility under Pinkerton.
For a defendant to be found guilty under Pinkerton, however, the offense must have been reasonably foreseeable to the defendant. On this point, Lee argues that the presence of the weapon was not foreseeable because he had only a peripheral role in the transaction, and the transaction was a "friendly" one where Lee was related to the confidential informant and was familiar with the co-conspirators.
While the evidence supports the facts argued by Lee, the Fifth Circuit applies a foreseeability test that focuses on the amount of drugs involved in a transaction. See United States v. Dean, 59 F.3d 1479, 1490 n. 20 (5th Cir. 1995). Under Fifth Circuit precedent, it is "foreseeable for the purposes of Pinkerton that a defendant's co-conspirators would carry firearms during a drug transaction because a substantial quantity of drugs" is involved.United States v. Elwood, 993 F.2d 1146, 1151 (5th Cir. 1993).
The drug transaction here involved two kilograms of cocaine which the defendants negotiated to sell for $44,000. The evidence shows that Lee was aware of the amount of drugs involved. The drug transaction in Elwood involved similar quantities of cocaine. The Fifth Circuit has found that the presence of a weapon is foreseeable in even a $5,000 transaction. See Dean, 59 F.3d at 1490 n. 20.
For these reasons, Lee has not shown that he is actually innocent, and thus he is barred from seeking relief on the weapons conviction. See United States v. Torres, 163 F.3d 909 (5th Cir. 1999) (citing Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).
Accordingly,
IT IS ORDERED that Henry Lee's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is DENIED.
New Orleans, Louisiana this 5th day of January, 2000.