Federal Circuits, 6th Cir. (June 23, 1992)
Docket number: 91-1965
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U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 2 - Sec. 2. Principals
U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 924 - Sec. 924. Penalties
U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 922 - Sec. 922. Unlawful acts
US Code - Title 21: Food and Drugs - 21 USC 841 - Sec. 841. Prohibited acts A
Before RYAN, BOGGS and BATCHELDER, Circuit Judges.
PER CURIAM.Theodore Donaldson appeals his convictions for use of a firearm during a drug trafficking offense, in violation of 18 U.S.C. 924(c), and being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). He contends that the government failed to demonstrate sufficient evidence to support these convictions. We affirm the judgment below.* On January 8, 1991, Stan Brue, an undercover agent with the Bureau of Alcohol, Tobacco, and Firearms, went to a house at 50 West Hollywood, in Detroit, Michigan. He met Mr. Donaldson, who had a felony record, at the door of the house. The two men went into the living room, where Mr. Donaldson agreed to sell Agent Brue a quarter ounce of crack for $280. Mr. Donaldson then asked Christopher Loyd to get the quarter ounce from the kitchen. Mr. Loyd went to the kitchen and returned with two small bags of crack, which Mr. Donaldson then sold to Agent Brue. Agent Brue, who was presenting himself as someone maintaining a crack house, then told Mr. Donaldson that he "wanted him to work" the house for him. He asked if Mr. Donaldson had a gun that he could use for protection, in the event that he took this proposed job. Mr. Donaldson responded that he had a .357 pistol in the house, but when Agent Brue suggested that he take the gun out of the house, Mr. Donaldson replied that "it would be bad for business if the gun left the residence."Soon after Agent Brue left the residence, a team of Alcohol, Tobacco, and Firearms agents executed a search warrant there. On the coffee table in the living room, the agents found the $280 Agent Brue used to buy the crack, as well as Mr. Donaldson's driver's registration. In the kitchen, the agents found ninety-eight grams of crack, a triple-beam scale, and plastic baggies. In the northwest bedroom, they found a loaded .357 revolver. After being read his Miranda rights, Mr. Donaldson told Agent Joseph Secrete that the drugs and the gun belonged to him. However, he stated that he had not used the gun for at least two weeks.On January 22, 1991, a grand jury in the Eastern District of Michigan indicted Mr. Donaldson on five counts: (I) distribution of more than five grams of crack, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii); (II) possession with intent to distribute more than fifty grams of crack, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii); (III) use of a firearm during a drug trafficking offense, in violation of 18 U.S.C. 924(c); (IV) possession with intent to distribute more than five grams of crack, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; and, (V) being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). Mr. Loyd was charged only on count IV, and was a fugitive at the time of trial.Before trial, Mr. Donaldson pled guilty to count I. At the close of the government's case, he moved for acquittal under Fed.R.Crim.P. 29 on counts III and V, but this motion was denied. On April 10, 1991, a jury found Mr. Donaldson guilty on counts II, III, and V. On August 7, 1991, the district court sentenced Mr. Donaldson to 236 months on count I, 120 months on count II, and 60 months on count V, with all sentences to run concurrently. The district court also sentenced him to 60 months on count III, to run consecutively to the other three counts. This timely appeal followed.IIMr. Donaldson argues that the district court should have dismissed count III, charging him with using a firearm during a drug trafficking offense. He contends that this count should have been dismissed because no strong connection was shown between drugs and the gun. He notes that five or six other people were present in the house, that the gun was not found near the drugs, and that no evidence linked him to ownership, possession, or occupancy of the house. Mr. Donaldson also contends that a comparison of the house to a fortress, like that adopted in United States v. Henry, 878 F.2d 937 (6th Cir.1989), is inappropriate in this case. He reasons that even if he knew the gun was present, the government presented no evidence that he used the gun to protect his drugs. Furthermore, if he were using the gun to support his drug business, he would not have kept it in a bedroom that contained no other evidence of drug dealing.Mr. Donaldson also notes that at one point during the trial, the district court stated that the evidence failed to demonstrate "either actual possession--and by this, I'm talking about physical possession--either actual or constructive possession." Because count V of the indictment charged Mr. Donaldson with "possession of a firearm," and the court stated that he had no such possession, he argues that the court should have dismissed this count.We reject these arguments. "[T]he test to be applied by a trial court in determining a defendant's motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure is taking the evidence and inferences most favorably to the government, if there is such evidence therefrom to conclude that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is for the jury." United States v. Overmyer, 867 F.2d 937, 938 (6th Cir.), cert. denied,Try vLex for FREE for 3 days
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