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UNITED STATES v. HERNANDEZ
August 6, 1996
UNITED STATES OF AMERICA, Plaintiff,
HECTOR HERNANDEZ and JAMES KERLEY. Defendants.
The opinion of the court was delivered by: NORGLE
CHARLES R. NORGLE, SR., District Judge:
Before the court are the separate motions of each Defendant to vacate, set aside, or correct their sentences pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motions are granted in part and denied in part.
On January 29, 1992, a grand jury returned a superseding indictment charging Defendants James Kerley ("Kerley"), Hector Hernandez ("Hernandez"), and Michael Williams ("Williams") with conspiracy to distribute, and possess with intent to distribute, 150 pounds of marijuana (Count 1), and using and carrying two firearms during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Counts 2 and 3). All three defendants were later tried and found guilty on all three counts.
During the trial, the evidence demonstrated that all three defendants participated in a drug deal that was foiled by federal agents while in progress. United States v. Williams, 31 F.3d 522, 524 (7th Cir. 1994). In the midst of the drug transaction, federal agents descended upon Kerley's garage to arrest all three Defendants. A search of Williams' person revealed a loaded .38 caliber handgun tucked into the waistband of his pants ("Count 3 gun"). Id. Upon further search of the arrest area, the agents discovered a second loaded handgun, a nine-millimeter Beretta pistol ("Count 2 gun"), concealed in a folded pair of pants which were placed on top of a heater inside of the garage.
After both the Government and defendants rested their respective cases, the court gave the jury the following instructions in relation to Counts 2 and 3:
In Counts Two and Three of the indictment, defendants Hector Hernandez, James L. Kerley, and Michael Williams are charged with the offense of carrying or using a firearm during and in relation to a drug trafficking offense in violation of Title 18, United States Code, Section 924(c). Section 924(c) provides in pertinent part:
To sustain the charge in Counts Two and Three of the indictment as to defendants Hector Hernandez, James K. Kerley, and Michael Williams, of using and carrying a firearm during and in relation to a drug trafficking crime, the government must prove the following propositions as to each defendant:
First, the defendant who you are considering is guilty of the offense charged in Count One of the indictment; and Second, the defendant who you are considering used or carried a firearm during and in relation to the offense charged in Count One.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, as to a particular defendant, then you should find that defendant guilty of Count Two and Three.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, as to a particular defendant, then you should find ...
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