United States v. Beard, John W. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-2509
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN BEARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Central District of Illinois.
No. 02–CR–30040—Jeanne E. Scott, Judge.
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ARGUED DECEMBER 16, 2003—DECIDED JANUARY 12, 2004
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Before BAUER, POSNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. John Beard appeals from his
conviction, after a jury trial, for carrying a gun during and
in relation to a drug offense, in violation of 18 U.S.C.
§ 924(c)(1)(A), on the ground that no reasonable jury could
have found him guilty beyond a reasonable doubt, so thin
was the evidence, which, construed as favorably to the gov-
ernment as the record permits (as we are required to do), is
as follows. Acting on an informant’s tip, police staked out
a parking lot. They watched as two cars parked next to one
another. Beard got out of the passenger side of one of them,
entered the other car, remained there for a few minutes, and
then returned to his car. Both cars drove off. Both were
stopped by the police. In the other car they found the cash,
2 No. 03-2509
and in the car in which Beard was the passenger, and which
they searched with his consent and that of the driver, they
found the drugs in a secret compartment behind the rear
seat and a loaded derringer in the closed center console of
the front seat, hidden under some papers. Neither Beard nor
the driver owned the car, but Beard had borrowed it eight
months earlier from its owner and had been seen driving it
from time to time. He was not the only person who used the
car during this period, however, and the papers that were
hiding it seem not to have belonged or pertained to him or
the person who was driving when the gun was found by the
police.
It is reasonably clear that if the gun was Beard’s, it was
being carried during and in relation to the drug offense.
Muscarello v. United States, 524 U.S. 125, 126-27 (1998); United
States v. Mancillas, 183 F.3d 682 (7th Cir. 1999); United States
v. Haynes, 179 F.3d 1045, 1047 (7th Cir. 1999); Young v.
United States, 124 F.3d 794, 800 (7th Cir. 1997); United States
v. Mitchell, 104 F.3d 649, 654 (4th Cir. 1997). As we said in
Haynes, “drug dealers do not bring guns to a deal unless
they wish to instill fear in their business associates or they
feel the need for protection.” 179 F.3d at 1047. The difficult
question is whether the gun was his. The government’s
lawyer acknowledged at argument that the jury could
reasonably have acquitted Beard, and indeed the jury at his
first trial hung. But bearing in mind that the standard for us
is not whether we think he was guilty beyond a reasonable
doubt but whether a reasonable jury could have found that
he was guilty beyond a reasonable doubt, United States v.
Powell, 469 U.S. 57, 67 (1984); United States v. Morris, 349
F.3d 1009, 1013 (7th Cir. 2003); United States v. Capozzi, 347
F.3d 327, 337 (1st Cir. 2003), we must affirm.
No one supposes that the derringer was the property of
the car’s owner—that she hid a loaded gun in the center
No. 03-2509 3
console when she lent Beard the car. Since others besides
himself used the car during the eight months that he pos-
sessed it, conceivably the gun was left there by one of these
users, but it is highly unlikely. It would mean that someone
who borrowed the car from Beard placed a loaded gun in
the console, covered it with papers to conceal it, and then—
what? Forgot about it? That is possible, but it was not so
lively a possibility as to compel a reasonable jury to acquit
Beard.
We asked his lawyer at argument what the explanation of
the defense was for the presence of the gun in the car that
Beard had borrowed. No answer was forthcoming. The
lawyer seems to have thought that since the government
had the burden of proof and Beard was privileged not to
testify (and he did not testify), it was irrelevant that the jury
was given no alternative to the government’s straight-
forward theory as to whose gun it was. That is incorrect.
“[T]he plausibility of an explanation depends on the
plausibility of the alternative explanations.” Spitz v. Commis-
sioner, 954 F.2d 1382, 1384 (7th Cir. 1992). And so, “realisti-
cally, a jury called upon to decide guilt must compare the
prosecution’s version of the incident giving rise to the case
with the defense version.” Sandoval v. Acevedo, 996 F.2d 145,
150 (7th Cir. 1993); see Ronald J. Allen, “Factual Ambiguity
and a Theory of Evidence, 88 Nw. L. Rev. 604, 611 (1994);
Allen, “The Nature of Juridical Proof,” 13 Cardozo L. Rev.
373, 409-40 (1991); Allen, “A Reconceptualization of Civil
Trials,” 66 B.U.L. Rev. 401 (1986). Confidence in a proposi-
tion, such as Beard’s guilt, is created by excluding alterna-
tives and undermined by presenting plausible alternatives.
See United States v. Tucker, 716 F.2d 576, 580 (9th Cir. 1983);
United States v. Reyes, 302 F.3d 48, 56 (2d Cir. 2002).
That is why the duty of a criminal defendant’s lawyer to
investigate is not satisfied just by looking for ways of pok-
4 No. 03-2509
ing holes in the government’s case. There must also be a
reasonable search for evidence that would support an alter-
native theory of the case. Harris v. Reed, 894 F.2d 871, 878-79
(7th Cir. 1990); Moore v. Johnson, 194 F.3d 586, 611 (5th Cir.
1999); United States v. Tucker, 716 F.2d 576, 580 (9th Cir.
1983). Evidently the search by Beard’s lawyer turned up
nothing. This left the jury with no alternative theory to the
government’s. Relative to the alternatives, the government’s
case was more powerful than it would have seemed in the
abstract.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-12-04