Summary
finding that circumstantial evidence was sufficient to show by a preponderance of the evidence that acts in furtherance of firearms offenses were committed in the district
Summary of this case from U.S. v. MAASOpinion
00 Crim. 312 (CSH)
March 14, 2002
MEMORANDUM OPINION AND ORDER
On December 10, 2001, a jury convicted defendant Chris Bishop of conspiring to deal in firearms without a license in violation of 18 U.S.C. § 371, dealing in firearms without a license in violation of 18 U.S.C. § 922 (a)(1)(A), and possessing a firearm after being convicted of a felony in violation of 18 U.S.C. § 922 (g)(1). On the day that the jury returned its verdict, Bishop requested an extension of time to file post-verdict motions under Rule 29 of the Federal Rules of Criminal Procedure until February 11, 2002, and the Court granted that request. By letter dated December 26, 2001, Bishop now moves for a judgment of acquittal pursuant to Rule 29(c) on the grounds that the evidence was insufficient to sustain a conviction on any count. For the reasons stated below, I conclude that the evidence presented at trial was sufficient to support the convictions against Bishop and therefore I deny his motion for a judgment of acquittal.
The motion was fully briefed by counsel for Bishop and the government on February 4, 2002. Subsequently, Bishop expressed the wish to proceed pro se and submitted a letter brief on his motion for a judgment of acquittal dated February 11, 2002. I postponed holding a conference to consider Bishop's wish to continue without assistance of counsel until after resolution of this motion. Accordingly, I accepted for consideration Bishop's pro se submission even though ordinarily a defendant may not both be represented by counsel and represent himself pro se. Subsequent responsive briefing was complete on March 11, 2002.
BACKGROUND
The government contended at trial that Bishop participated from July to October of 1999 in a conspiracy to purchase guns in Kentucky and sell them for a substantial profit in New York City. Bishop's alleged co-conspirators were Quincy Hale, Craig Bryce, Anthony Drake, and Don Saunders. Hale testified for the government at Bishop's trial, and the government also introduced the plea allocutions of Bryce, Drake, and Saunders, appropriately redacted and made the subject of a limiting instruction by the Court. The other principal government witnesses were Fonda Reeks, Bishop's girlfriend and roommate in the late summer of 1999, and John Robert, a New York City undercover detective who purchased guns from Saunders.
Hale testified that, starting in the fall of 1998, he and Bryce collaborated on multiple occasions to buy guns in Kentucky and resell them in New York City. In the summer of 1999, Hale came into contact with his friends Bishop and Drake, both of whom recently had been released from prison (Bishop was released from a halfway house in July), and told them about his gun trafficking activities with Bryce. Bishop and Drake showed interest in joining Hale's gun trafficking activities, and the three of them then made plans to purchase a number of guns and transport them to New York, where Bryce would arrange for them to be sold.
Hale testified further that he, Bishop, and Drake each contributed money toward the purchase of the guns — $400 by Hale, $1000 by Bishop, and around $300-350 by Drake. On August 25, 1999, they selected and Hale purchased five guns from one pawnshop and twelve guns from another pawn shop, all of which they picked up the next day. The first group of five guns was distributed as follows: Bishop took two, one of which he sold, Drake took one and sold it, and Hale took two. The second group of twelve guns was put in a closet at Bishop's home. Bishop obtained a rental car, and on August 27, he and Drake left for New York with the guns in a speaker cabinet in the trunk. Hale helped them load the guns in the car but remained in Kentucky. Bishop later called Hale from New York and told him that he and Drake had so far realized $1500 from the sale of some of the guns. When Bishop and Drake returned, they showed Hale a photograph of them in New York City with Bryce and some gold jewelry they bought there. They also told Hale that they had left some guns with Bryce to sell. Bryce later told Hale that he had sent an additional $1000 from the sale of the guns to Bishop. Hale eventually received approximately $350 in payment in kind from Bishop.
Fonda Reeks corroborated the testimony of Hale in several respects. She testified that in July 1999, Bishop, Hale, and a third person (Drake) started planning a trip to New York City to see "Shorts" (Bryce). Bishop's mother rented a car for him to use for the trip. The week of the trip, Bishop put a heavy box in the closet of his and Reeks' residence and told Reeks not to bother it. Immediately before Bishop left for New York, Bishop told Reeks to stay upstairs while he was downstairs with Hale and Drake. After Bishop left, Reeks noticed that a speaker cabinet was missing and that the box in the closet was much lighter and contained only smaller empty boxes. When Bishop returned from New York, he showed Reeks the same photograph and jewelry that he showed Hale. Later, he received in the mail a money order from Bryce. Bishop told Reeks that Bryce still owed him money and that Hale claimed that Bishop owed him money.
John Robert testified that while he was working undercover, he purchased eight guns from Don Saunders in New York City between September 1999 and February 2000. Saunders told Robert that the guns he sold came from Kentucky and named "Shorts" (Bryce) and "Slim" (Hale) as suppliers. Three of the guns bought by Robert were traceable to the purchases made by Hale on August 25, 1999. Another gun was traceable to a purchase made by Bryce.
The parties stipulated that Bishop returned to prison on October 28, 1999. According to Hale and the plea allocutions of Bryce and Saunders, they continued to deal in firearms through the end of 1999 and into the beginning of 2000.
DISCUSSION
"A defendant who challenges the sufficiency of the evidence supporting his conviction bears a heavy burden." United States v. Velasquez, 271 F.3d 364, 370 (2d Cir. 2001) (citations and internal quotation marks omitted). In order to succeed, he must "demonstrate that no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. When evaluating whether the evidence was sufficient to convict a defendant, a court must "consider all of the evidence, both direct and circumstantial, in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government." Id. Furthermore, a court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." Id.
Bishop in his pro se reply brief mistakenly argues that circumstantial evidence is not sufficient to support a conviction. The government is not required to prove its case by means of eye witness testimony, and the jury is entitled to believe indirect evidence.
Bishop's first argument is that the evidence showed at most that he participated in a single transaction but did not hold himself out as a source of firearms. Therefore, Bishop argues, the evidence was insufficient to support his conviction on Count Two for dealing in firearms without a license or to support his conviction on Count One for conspiring to do so.
18 U.S.C. § 922 (a)(1)(A) makes it unlawful for any person who is not a licensed dealer to "engage in the business of . . . dealing in firearms." A person who is engaged in the business of dealing in firearms is defined by statute to mean:
a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.18 U.S.C. § 921 (a)(21)(C). The Second Circuit has stated that "ordinarily there must be proof of more than an isolated transaction" in order to show that a defendant was engaged in the business of dealing in firearms; however, there is no "`magic number' of sales that need be specifically proven." United States v. Carter, 801 F.2d 78, 81-82 (2d Cir. 1986); see also United States v. Allah, 130 F.3d 33, 43-44 (2d Cir. 1997). "[T]he statute reaches those who hold themselves out as a source of firearms. . . . [T]he government need only prove that the defendant has guns on hand or is ready and able to procure them for the purpose of selling them from to time to such persons as might be accepted as customers." Id. at 82.
There was sufficient evidence in this case for the jury to find that Bishop conspired to engage in the business of dealing in firearms and in fact did so. The evidence at trial, considered in the light most favorable to the government, showed that Bishop participated in substantially more than an "isolated transaction." He learned that Hale and Bryce had been making money by purchasing guns in Kentucky and reselling them in New York. He agreed to join in their activities and contributed $1000 toward the purchase of guns. He assisted Hale's purchase of seventeen guns from two pawnshops. He obtained a rental car and traveled to New York with Drake to deliver to Bryce at least twelve guns for resale. The guns were sold to multiple purchasers — Bishop sold one in Kentucky, Drake sold one in Kentucky, at least $1500 in sales was realized while Bishop and Drake were in New York, and at least $1000 in sales was realized in New York after Bishop and Drake returned to Kentucky. Three guns were sold to Detective Robert by Saunders, who identified Bryce and Hale as his sources. The jury could reasonably have concluded from this evidence that Bishop joined in the gun dealing activities of Hale and Bryce as a profit-making enterprise, that he devoted considerable time and resources to that enterprise, that he participated in or assisted multiple purchases and sales of firearms, and that Bishop, Hale, Drake, Bryce, and Saunders held themselves out as a source of firearms to buyers in New York.
Bishop's second argument is that there was insufficient evidence to support a finding on Count Three that he possessed firearms. Bishop contends that "there is no credible evidence supporting the government's assertion that Mr. Bishop possessed firearms. . . . No one saw Mr. Bishop in possession of firearms in New York. No one saw Mr. Bishop in possession of firearms in Pennsylvania and only one person claims to have seen Mr. Bishop in possession of the firearms in Kentucky — Quincy Hale, and Mr. Hale is unworthy of belief"
I cannot accept Bishop's argument, because in considering a motion for a judgment of acquittal, I am required to "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses." Velasquez, 271 F.3d at 370. Hale's testimony at trial provided direct evidence that Bishop possessed firearms on his person, in his home, and in his rental car. The testimony of Reeks and Robert provided circumstantial evidence that corroborated Hale's testimony. Furthermore, the testimony of Hale, Reeks, and Robert provided circumstantial evidence that Bishop personally transported guns to New York City. Considering all the evidence together, the jury was entitled to conclude that Bishop had firearms on his person, stored firearms in his apartment in Kentucky, and transported firearms by car to New York City.
Bishop's final argument is that venue for Counts Two and Three was not established, because there was insufficient evidence that Bishop transported guns to New York. Bishop contends that venue is an essential element of the offense that must be proven beyond a reasonable doubt.
Venue "is not an element of the crime" and must be proven only "by a preponderance of the evidence." United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999). There was sufficient evidence for the jury to find by a preponderance of the evidence that Bishop committed acts in furtherance of the crimes charged in Counts Two and Three in the Southern District of New York. As explained above, the testimony of Hale, Reeks, and Robert provided circumstantial evidence, which the jury reasonably could have believed, that Bishop traveled with Drake by car to New York City, transporting guns for sale.
CONCLUSION
Bishop's motion for a judgment of acquittal is denied, because there was sufficient evidence to sustain the jury's verdict on the three counts charged.
A question has arisen about the continued legal representation of Bishop. Counsel will be advised separately of a hearing date to consider that matter before sentencing.
It is SO ORDERED.