United States v. Burgess , 209 F. App'x 497 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0926n.06
Filed: December 22, 2006
No. 05-4067
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MICHAEL LAWRENCE BURGESS, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: DAUGHTREY and McKEAGUE, Circuit Judges, and REEVES,* District
Judge.
PER CURIAM. The defendant, Michael Lawrence Burgess, appeals from his
convictions on three counts of possession of crack cocaine with intent to distribute, one
count of possession of a firearm in the furtherance of a drug trafficking crime, and one
count of being a felon in possession of ammunition. Following the district court’s
imposition of an effective prison sentence of 360 months, Burgess contends on appeal that
the evidence adduced at trial was insufficient to support the jury’s verdict and that his trial
attorney provided him with ineffective assistance of counsel. We conclude that the
defendant’s challenge to the sufficiency of the evidence is without merit and that his Sixth
*
The Hon. Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
No. 05-4067
United States v. Burgess
Amendment challenge is best reserved for collateral review. We therefore affirm the
judgment of the district court, but we also find it necessary to remand the matter for
correction of a minor clerical error in the judgment, pursuant to the provisions of Rule 36
of the Federal Rules of Criminal Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
The record in this case establishes that the defendant was found to be in
possession of crack cocaine on three different occasions over a nine-month period
between December 2003 and August 2004. Burgess insists that the circumstances
indicate his guilt of mere possession of the drug for his own personal use. The
government takes the position that the following facts establish possession with intent to
distribute.
December 18, 2003, Arrest
On the first occasion, Columbus police received a report of a man threatening a
woman with a gun in the vicinity of 2381 Apple Street. Arriving at that location, Officers
Michael Kegley and Bradley Wannamacher noticed an individual sitting in a truck parked
on the grass with both its motor and its lights turned off. As they directed that person out
of the driver’s side of the vehicle, the officers noticed a second person, later identified as
defendant Burgess, crouched as though hiding in the front passenger seat. After also
removing Burgess from the truck, the police recovered two loaded firearms from the floor
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on the passenger side of the vehicle. A subsequent pat-down of the defendant yielded an
electronic scale, a bag of marijuana, and a total of 12 grams of crack cocaine, an amount
that later trial testimony indicated would sell for $400 to $1200, depending on how the
material was divided and packaged. However, the officers found no paraphernalia in the
truck that could be used to smoke the crack cocaine, no cigars (in which the crack cocaine
could be combined with marijuana or other substances for smoking purposes), no evidence
of cigar smoke, and no odor of crack cocaine that had recently been smoked.
According to the police, mere users of crack cocaine are not usually found with 12
grams of the illegal substance in their possession; rather, only dealers of narcotics
generally carry such large amounts with them. Officer Kegley further testified at trial that
he could not recall ever arresting a simple user of narcotics who invested in, used, and
carried a digital scale and who did not carry with him or her paraphernalia for smoking
crack, especially if the individual was then in possession of the illegal substance.
May 15, 2004, Arrest
Additional trial testimony recounted how two other Columbus police officers spotted
the defendant sitting in the passenger seat of a vehicle driven by Burgess’s girlfriend, Edith
Dixon, on May 15, 2004. Because the officers recognized Burgess and were aware that
an outstanding warrant existed for his arrest for failing to appear for a court date related
to the December 2003 arrest, Officers Richard Griggs and Brett Slaughter then effected
a stop of the automobile. A search of the vehicle yielded two loaded firearms )one found
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under the driver’s seat and the other under the passenger’s seat) an electronic digital
scale, two film canisters containing crack residue, and scattered crumbs of crack cocaine.
Searches of the two occupants of the vehicle resulted in discovery of a baggie of
marijuana, a baggie of crack, and approximately $80 on the defendant, and crack cocaine
and approximately $200 on Dixon. Although a total of 3.3 grams of crack was recovered
by the police, officers did not observe Burgess or Dixon using crack, did not detect an odor
of smoked crack cocaine, and found no smoking paraphernalia or cigars in the vehicle.
After being handcuffed, transported to police headquarters, and advised of his rights not
to talk to the police, the defendant nevertheless “claimed that all of the narcotics,
contraband, and the guns that were found in the vehicle were his.”
August 14, 2004, Arrest
Three months later, Officer Griggs was engaged in surveillance of a suspected
crack house in Columbus when he observed the defendant arrive on the scene and hand
another individual something from a container Burgess produced from his pants pocket.
The police were unable to detain the individual seen with Burgess, but after following the
defendant to a nearby store, Griggs arrested Burgess and recovered from him $900 in
cash and a film canister that contained four grams of crack cocaine. Again, however,
police found no paraphernalia on the defendant’s person that would have been of use in
actually ingesting the illegal narcotic.
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Based upon these facts and observations, as well as upon information that the
ammunition found in the firearms Burgess claimed were his was manufactured outside the
state of Ohio, and information that the defendant had previously been convicted of a
felony, the government obtained a seven-count indictment against Burgess. At trial, the
defendant testified in his own defense, admitting that he used crack cocaine but denying
that he ever possessed it with the intent to sell it to others. He further disputed the
inference that the quantities of the drug recovered from him provided evidence of his status
as a seller of narcotics. Instead, he testified that crack addicts would purchase whatever
amount of the drug they could afford: “If you’ve got $50, you’re going to buy $50. If you’ve
got $100, you’re going to buy $100.”
On direct examination, the defendant confessed to possession of the 12 grams of
crack recovered on December 18 and to the 3.3 grams of crack found in Edith Dixon’s car
on May 15. However, he denied possessing the narcotics that served as the basis for the
August 14 arrest. Burgess claimed that he had admitted ownership of the guns in Dixon’s
vehicle only to protect her from a prosecution that could have sent her to prison for life.
Additionally, he admitted his ownership of the electronic scales confiscated from him, but
he claimed that he purchased those scales only to ensure that he was not cheated during
his own purchases of drugs for personal use.
Faced with conflicting accounts of Burgess’s possession of firearms and his intent
in possessing crack cocaine, the jury credited the testimony of the prosecution witnesses
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in almost all instances. The jury found the defendant guilty on all three counts of
possession of crack with intent to distribute, on one count of possession of a firearm in
furtherance of a drug trafficking crime, and on one count of possessing a firearm after
having been found guilty of previous felonies. The jury did, however, acquit Burgess on
the charges of possession of a firearm in furtherance of the December 18 drug crime and
of being a felon in possession of a firearm during that offense. In light of Burgess’s
significant prior criminal history, the district judge imposed an effective prison sentence of
360 months for the five convictions. The defendant now appeals from that judgment.
DISCUSSION
Sufficiency of the Evidence
Burgess first contends that the evidence adduced at trial by the government was not
sufficient to prove his guilt of possession of crack cocaine with intent to distribute or to
prove that he possessed firearms in furtherance of a drug trafficking crime. Rather, he
argues, the relatively small amount of drugs with which he was caught in each of the three
arrests was consistent with personal use, and that his mere possession of the firearms
recovered from Edith Dixon’s vehicle does not necessarily mean that the weapons were
to be used to facilitate a drug trafficking offense.
Ordinarily, in analyzing any challenge to the sufficiency of the evidence, we must
determine whether, viewing the trial testimony and exhibits in the light most favorable to
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the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In
doing so, moreover, “we may not reweigh the evidence, reevaluate the credibility of
witnesses, or substitute our judgment for that of the jury.” United States v. Martinez, 430
F.3d 317, 330 (6th Cir. 2005), cert. denied, 126 S. Ct. 1603 (2006). Where, as in this case,
however, a defendant fails to renew a motion for judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure at the close of all proofs, our “appellate review
is limited to determining whether there was a manifest miscarriage of justice[, which] exists
only if the record is devoid of evidence pointing to guilt.” United States v. Price, 134 F.3d
340, 350 (6th Cir. 1998) (internal quotation marks and citations omitted).
No such evidentiary vacuum exists in this case. Although Burgess contends that
the government offered no proof to establish that the amount of drugs found was
inconsistent with personal use, that the prosecution failed to put forth evidence of a high
street value of the contraband, and that no cash was found on the defendant, of the trial
testimony refutes each of those claims. Testifying police officers asserted, for instance,
that only drug dealers, not users, carry as much as 12 grams of crack at one time; that
users ordinarily possesses only a rock or two of crack at a time, not four grams; that they
had never previously arrested any user who was not also in possession of paraphernalia
necessary to smoke the crack cocaine that had just been purchased; that Burgess was in
possession of $80 at one arrest and $900 at another; that the street value of 12 grams of
crack could be as much as $1,200; that they had never seen a non-dealer with electronic
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scales like the ones confiscated from the defendant; and that three or four grams of crack
cocaine could easily supply a user for a week.
In addition, the prosecution offered evidence during trial that the firearms recovered
from Edith Dixon’s vehicle – weapons that Burgess admitted were his – were possessed
in furtherance of a drug trafficking offense. In United States v. Mackey, 265 F.3d 457, 462
(6th Cir. 2001), we held that “[i]n order for the possession [of a firearm] to be in furtherance
of a drug crime, the firearm must be strategically located so that it is quickly and easily
available for use.” Other factors may also be considered by a court, but any attempted
listing of such considerations is necessarily non-exhaustive. Indeed, as noted in Mackey,
the ultimate determination is simply whether the firearms served to further the commission
of the drug trafficking offense as opposed to, for example, “innocent possession of a wall-
mounted antique or an unloaded hunting rifle locked in a cupboard.” Id.
In this case, the firearms that Burgess initially admitted owning, but later disavowed,
were loaded and were hidden under the seats of the car in which the defendant was a
passenger. Consequently, Burgess enjoyed easy and immediate access to the dangerous
weapons that were specifically placed in a location from which they could be used to
protect not only illegal narcotics but also the individuals involved in the distribution of those
drugs.
With no evidence in the record of actual sales by the defendant, the record
obviously does not present an ironclad case against Burgess in terms of intent to distribute.
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In this case, however, such certitude is not required. What is clear is that the appellate
record is not “completely devoid of evidence” that Burgess possessed crack cocaine with
the intent to distribute and that he possessed firearms in furtherance of drug-trafficking, as
charged. Under these circumstances, we cannot say that the defendant’s convictions
represent a manifest miscarriage of justice. We therefore conclude that the defendant’s
challenge to the sufficiency of the evidence is without merit.
Even so, we must remand the case to the district court for correction of the
judgment. We have explicitly recognized “that 18 U.S.C. § 924(c) criminalizes two
separate and distinct offenses.” United States v. Combs, 369 F.3d 925, 933 (6th Cir.
2004). Subsection (c)(1)(A), in relevant part, applies to “any person who, during and in
relation to any . . . drug trafficking crime . . . for which the person may be prosecuted in a
court of the United States, uses or carries a firearm,” as well as “any person . . . who, in
furtherance of any such crime, possesses a firearm.” Burgess clearly was charged in the
indictment with possession of “one or more firearms . . . in furtherance of a drug-trafficking
crime,” and he was convicted of that same crime. Inexplicably, however, the district court’s
judgment states that Burgess “is adjudicated guilty of . . . Possession of a Firearm in
relation to a Drug Trafficking Crime.” (Emphasis added.) Because such an improper
mixing of the elements of separate offenses did not occur at any other point in this
prosecution, the lone erroneous reference in the judgment itself to an offense other than
that charged in the indictment must be viewed as a harmless, clerical error that may be
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corrected by the district court at any time “[a]fter giving any notice it considers appropriate.”
FED . R . CRIM . P . 36.
Ineffective Assistance of Counsel
In a final appellate issue, the defendant asserts that his trial attorney provided him
with ineffective assistance of counsel. Specifically, Burgess submits that defense counsel:
failed to pursue a suppression motion to resolution; failed to challenge the lack of
disclosure of exculpatory evidence; failed to conduct a complete investigation of the crime
scenes; failed to communicate with the defendant concerning plea offers and sentencing
considerations; failed to move to sever the charges at trial; and failed to challenge the
government’s assessment of the weight and purity of the crack cocaine recovered from
him. In United States v. Martinez, 430 F.3d at 338, we recently reiterated that such claims
of ineffective assistance of counsel are best brought in a post-conviction proceeding under
28 U.S.C. § 2255 in order to allow the parties to develop an adequate record on the issues
presented. Although the district judge and counsel for the defendant and the government
did discuss some of Burgess’s ineffective assistance of counsel allegations on the record,
other of the current assertions were not presented to the court. Furthermore, even the
discussions that did occur at trial on some of these matters did not afford Burgess the
opportunity for cross-examination that might occur during a § 2255 hearing. Rather than
attempt to patch together an assessment of the services actually provided by defense
counsel on some claims and remand yet other claims for development of evidence, we
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decline to address the merits of the defendant’s ineffective assistance of counsel claim on
direct appeal.
CONCLUSION
For the reasons set out above, we conclude that the defendant has not met his
burden of establishing that a manifest miscarriage of justice occurred as a result of the
convictions established by the jury’s verdict. We therefore AFFIRM those convictions but
REMAND this matter to the district court for correction of the clerical error evident in the
judgment itself.
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