U.S. v. Willoughby

Page 263

27 F.3d 263

UNITED STATES of America, Plaintiff-Appellee, v. Randall Ray WILLOUGHBY, Defendant-Appellant.

No. 92-3611.

United States Court of Appeals Seventh Circuit.

Argued March 1, 1994.

Decided June 17, 1994.

Victoria Ursulskis, Steven DeBrota (argued), Indianapolis, IN, for U.S.

Robert B. Keene (argued), Indianapolis, IN, for Randall R. Willoughby.

Before BAUER, FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Randall Ray Willoughby was charged with eight counts of distributing cocaine and two counts of possessing cocaine with the intent to distribute, all in violation of 21 U.S.C. Sec. 841(a)(1), and one count of "using or carrying" a gun "during and in relation to ... the distribution of cocaine" in violation of 18 U.S.C. Sec. 924(c). Willoughby entered a plea of guilty to the various drug crimes but proceeded to trial before the bench on the firearm charge. The district court found Willoughby guilty as charged and sentenced him to 270 months in prison--210 months for the drug offenses and 60 months for the weapons offense. Willoughby appeals only the Sec. 924(c) conviction on the ground that the evidence was insufficient to prove that the gun was used or carried in relation to the distribution of cocaine as charged in the indictment. We reverse.

In eight separate controlled buys, Willoughby sold a total of nearly 64 grams of cocaine to a confidential informant. After concluding the final sale, Willoughby was arrested and searched. The search uncovered 8.09 grams of cocaine, 65 dosage units of Dilaudid (hydromorphone hydrochloride), the $1,000 given in the controlled buy, and an additional $1,800. After receiving Miranda warnings, Willoughby consented to a search of his residence. During the search, the officers spoke with a woman who told them that she had rented a storage unit to Willoughby. She said that she had not been to the unit since renting it. Willoughby confirmed this information and consented to a search of the unit.

Inside the unit was an inoperable Datsun automobile with several tools lying around it. A brown cardboard box sat next to a suitcase on the backseat of the car. Inside the box were a loaded .22 caliber revolver, triple beam scales, several sandwich-sized plastic baggies, and some loose coins and jewelry. The adjacent suitcase contained 164 grams of cocaine, 47.1 grams prepackaged in 91 small ziploc baggies, and several hundred empty small plastic baggies identical to the bags holding the cocaine that had been sold in the earlier controlled buys. The officers testified at trial that the large quantity of cocaine and the drug paraphernalia found in the storage unit indicate that the cocaine was being stored and packaged for subsequent distribution rather than for personal use. The government also established that the gun was loaded, operable and in close proximity to the drugs when discovered.

Following the close of the government's case, Willoughby moved for a judgment of acquittal on the ground that the government had failed to prove that the gun had been used or carried in relation to the charged offense. The court took the motion under advisement. Willoughby then took the stand in his own defense, claiming that he did not own the gun and was merely storing it for its owner. The court found Willoughby guilty of the weapons offense. On appeal, Willoughby challenges the district court's determination that he "used or carried" the gun "during and in relation to" the drug trafficking offense named in the weapons count, i.e., the distribution of cocaine. Specifically, he contends that because the language of the indictment charged him with using the gun during and in relation to the distribution of cocaine as opposed to the possession with intent to distribute cocaine, there must be some evidence that the gun facilitated a distribution for the Sec. 924(c) conviction to stand. The evidence was insufficient, he argues, because there was no evidence of distribution of cocaine at the storage unit, nor was there sufficient proof that the gun was either used or carried in connection with the distribution of drugs elsewhere.

The theory under which the mere presence of a firearm in the vicinity of a drug cache not associated with any on-site buying or selling activity can sometimes constitute sufficient evidence to sustain a Sec. 924(c) conviction is that an accessible weapon can serve to protect the defendant's illicit and valuable inventory. See, e.g., United States v. Villagrana, 5 F.3d 1048, 1052 (7th Cir.1993). Since possession with intent to distribute is a "drug trafficking activity" within the meaning of Sec. 924(c), see United States v. Nash, 876 F.2d 1359, 1361-62 (7th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990), no actual transacting need be associated with a gun as long as it can be said that under the circumstances (factors like accessibility, whether the gun was loaded, the amount of drugs, the presence of other guns are frequently found relevant) the gun facilitated the possession of to-be-distributed drugs. See United States v. Woods, 995 F.2d 713, 718 (7th Cir.1993). Though engendering criticism elsewhere, see, e.g., United States v. McFadden, 13 F.3d 463, 466-71 (1st Cir.1994) (Breyer, C.J., dissenting), and applied with varying strictness, compare United States v. Derr, 990 F.2d 1330, 1337-39 (D.C.Cir.1993), and United States v. Feliz-Cordero, 859 F.2d 250, 254 (2nd Cir.1988), with United States v. Jones, 990 F.2d 1047, 1049 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994), the approach is well-established in this circuit. With respect to the cocaine found in the storage unit, Willoughby pled guilty to possession with intent to distribute. Even if he were not charged separately with or convicted of that crime, see, e.g., United States v. Hill, 971 F.2d 1461, 1463-64 (10th Cir.1992) (en banc); United States v. Wilson, 884 F.2d 174, 176-77 (5th Cir.1989); United States v. Bailey, 995 F.2d 1113, 1121 (D.C.Cir.1993) (D. Ginsburg, J., dissenting), vacated, reh'g en banc granted, 4 F.3d 1004 (1993), the presence of a loaded gun in close proximity to a distributable quantity of drugs may have sufficed to prove beyond a reasonable doubt that he used that firearm in connection with the drug trafficking offense of possession with intent to distribute. The problem in this case arises not because of want of sufficient evidence linking Willoughby to a drug trafficking offense but because of the lack of evidence linking him to the drug trafficking offense specified in the Sec. 924(c) section of the indictment.

Proof of an offense at trial may depart from the framework of the indictment in two principal ways. The proven elements of a sustainable conviction are sometimes narrower than the full scope of the charge in the sense that the charge states all and more than what is necessary to identify the offense and sufficient evidence is not introduced to support each of the excess allegations. Such an occurrence is typically labeled a variance and is subject to harmless error review. The defendant was, in theory, fully informed of what was to become the offense of conviction; the essential question is whether the initial statement of that offense to which the defendant was entitled was so obfuscated by the breadth of the charging instrument that he was unfairly surprised or otherwise prejudiced in the conduct of his defense (or a risk of double jeopardy was created). See United States v. Thompson, 23 F.3d 1225, 1230 (7th Cir.1994) On the other hand, trial proof sometimes goes beyond the parameters of the indictment in that it establishes offenses different from or in addition to those charged by the grand jury. Termed a constructive amendment of the indictment, such error, which in a jury trial can also be generated or exacerbated by faulty instructions, violates the Fifth Amendment since the Grand Jury Clause limits the available bases for conviction to those contained in the indictment. See Schmuck v. United States, 489 U.S. 705, 717-18, 109 S.Ct. 1443, 1451-52, 103 L.Ed.2d 734 (1989). A resulting conviction cannot stand because there is no assurance that it matches the offense charged. It is, in other words, reversible per se. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). At the same time, it is important to note that not all variations in proof that contradict or supplement verbiage in the indictment rise to the level of constructive amendments. Like variances, some are generally benign in that they do not create a risk of conviction for an uncharged offense. These typically involve the correction of mere technical errors contained in the indictment, of a typographical or clerical nature for example, which would not alter the essential substance of the charged offense. See United States v. Leichtnam, 948 F.2d 370, 376 (7th Cir.1991).

Obviously, whether a discrepancy is of constitutional dimension--that is, whether it constitutes an often-permissible narrowing or technical correction of the...