Judge Berzon reins in government overcharging, in a great decision on the proof necessary for Section 924(c ) cases. United States v. Rios, __ F.3d __, 06 Cal. Daily Op. Serv. 6097 (9th Cir. June 2, 2006), available here. A careful opinion in a shotgun case, Rios lays out important principles on the proof requirements for this dangerous, mandatory-minimum statute.
Players: Yet another great Berzon opinion.
Facts: Rios was admittedly part of an illegal prescription-drug sale conspiracy. Id. at 6102. At one location, the feds found drugs and cash. At a second location – Rios’s home – the feds found papers relating to the conspiracy. Id. at 6103. They also found an unloaded, sawed-off shotgun in a dresser. Id. Rios paid for his place in cash, had midnight visitors several times a week, but cleaning staff had never seen drugs there. Rios only fought the § 924(c) charge. Id. at 6102.
Issue(s): “Rios contends that the evidence produced at trial was not sufficient to convict him of possession of a firearm in furtherance of a drug trafficking crime under § 924(c)(1)(A).” Id. at 6101.
Held: “We agree.” Id. at 6101-02.
* “We therefore hold that expert testimony that drug traffickers generally use firearms to further their drug crimes, standing alone, is not sufficient to establish that a firearm was possessed in furtherance of a particular drug crime.” Id. at 6109.
* “A single document listing prices for controlled substances is not sufficient evidence that Rios actually dealt drugs from his residence, as opposed to from elsewhere. Nor does the price list in any other way support the required inference that the firearm was possessed in furtherance of the drug crime.” Id. at 6110.
* “The presence of cash on his person does not, however, illuminate where Rios dealt the drugs or otherwise indicate a connection between the drugs and the gun. In sum, there simply was not sufficient evidence to support the conclusion that Rios was dealing drugs from his home and that possession of the gun was in furtherance of that activity.” Id.
Of Note: Finally! The government has been overcharging Section 924(c) for years, and unfairly using the threat of 924(c) charges to coerce bad deals. Ace NorCal R&W Attorney Steve Koeninger caught this abuse over a year ago - here’s a brief anticipating the Rios decision and collecting circuit splits on the “in furtherance” problem. See brief here.
(As usual), Judge Berzon gets this case exactly right: Ninth precedent and the statute's legislative history demand some sort of active relationship between drug crimes and guns that may be laying around.
How to Use: 1. Read Rios. This isn’t a bright-line rule case, but a thoughtful application of facts to previous examples. As illustrated by the “Held” quotes above, the decision is packed full of useful principles that reject different types of evidence as proof of 924(c) charges.
2. Rethink deals. It’s common to cave to a high-end drug deal with the threat of § 924(c) charges hanging overhead. Rios makes 924(c) more defensible.
3. Rewrite jury instructions. Ninth Circuit Model Criminal Jury Instruction 8.65 (the § 924(c) instruction) doesn’t cut it, particularly after Rios. The instruction says, “A defendant takes such action ‘in relation to the crime’ if the firearm facilitated or played a role in the crime.” Juries don’t get this (nor do we): use Rios’s principles for defense instructions to beef-up the “in relation” requirement.
For Further Reading: Section 924(c) is a dangerous charge, slapping long mandatory minimum sentences on top of drug or crime of violence sentences. See statute here. This apparently straightforward statute has generated an oddly disproportionate amount of big cases. In 1995, the Supreme Court explained what “use” of a gun really means. See Bailey here. In a bitterly disappointing and divided 2002 decision, the Court limited Apprendi’s application in Section 924(c). See Harris here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at http://www.ndcalfpd.org/