Appeal from the United States District Court for the Southern District of Illinois. No. 94 CR 40069 J. Phil Gilbert, Chief Judge.
Before POSNER, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.
DECIDED SEPTEMBER 13, 1996
Corey Robinson, Michael Scott, Jr., and Andre Monroe *fn1 were indicted in a two-count indictment for conspiring to possess with intent to distribute cocaine base (crack cocaine), in violation of 21 U.S.C. secs. 841(a)(1) and 846, and for using or carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. sec. 924(c)(1). Scott pled guilty to both counts and testified against Robinson at trial. Robinson was convicted by a jury of both counts. He appeals his conviction for using or carrying a firearm, the district court's refusal to give a "mere presence" instruction, and the court's calculation of the amount of drugs he was responsible for at sentencing. We reverse and remand Robinson's conviction for using or carrying a firearm, but affirm the court's rejection of the mere presence instruction and calculation of the drugs attributable to him. Scott also appeals, but we dismiss his appeal and grant his counsel's motion to withdraw.
During the summer of 1993, Michael Scott, Jr., and his brother, Andre Monroe, moved from East St. Louis to Murphysboro, Illinois and set up a crack cocaine distribution business there. The two made periodic trips back to East St. Louis to buy drugs and operated their business out of various homes in Murphysboro. For a while Scott and Monroe lived with Scott's girlfriend and her baby and established a thriving drug trade in the home. One witness described the drug-selling activity at this home saying, "It was like a supermarket. It was--it was a crazy place. It was constantly 24 hours a day. Crack was always being sold out of there."
During the fall of 1993, Monroe left town after being robbed and beaten up in the home. Corey Robinson, who went by the name "E," essentially took Monroe's place in Scott's drug business, and Scott and Robinson began selling together in the Murphysboro area. Scott acknowledged at trial that he had sold crack with Robinson out of the Murphysboro home of a woman named Jeri Branch. *fn2 Several other witnesses also testified to observing Scott and Robinson selling crack together. Specifically, Timothy Robinson, *fn3 another local drug dealer and a friend of Michael Scott and Corey Robinson, testified that he once picked up Scott and Robinson in East St. Louis and that each of them brought back one ounce of crack cocaine. Timothy Robinson testified to observing Corey Robinson and Michael Scott regularly selling crack together for a period of five weeks out of Jeri Branch's home. He described their business as going "seven days a week" with "[a] constant flow everyday." Timothy Robinson also stated that he would conservatively estimate that Corey Robinson sold approximately five ounces of crack during this period. Martin Alexander likewise testified that he observed Corey Robinson and Michael Scott selling together at that location and that he had purchased cocaine from Robinson there, though he couldn't say how many times. *fn4 Alexander stated that he once picked up Robinson and Scott at a home in East St. Louis and that while driving home he observed a couple of bags of golf-ball size chunks of crack in the back seat of the car. Alexander stated that Timothy Robinson, who also came along for the trip, had one of the bags, but he was not sure if Corey Robinson had the other one or not. Terrell Kempfer testified to buying crack from Corey Robinson two or three times. *fn5 And Charlene Branch, who was in the federal witness protection program at the time of trial, testified that she observed Corey Robinson and Michael Scott selling crack together from her sister Jeri's home on more than 50 occasions and that she herself purchased crack from them as many as 50 times, though "sometimes" both men were not present.
The government also presented substantial evidence at trial regarding the use and possession of numerous firearms by Corey Robinson and Michael Scott. Scott himself admitted to owning two guns, a Glock 40 and a Ruger 40, for "protection" and testified that he had observed Robinson with guns while selling crack cocaine. *fn6 Timothy Robinson testified to seeing Scott with a .40 caliber Ruger while Scott was selling crack and also to seeing him in possession of an "AK 47" assault rifle. Timothy Robinson further recounted observing Corey Robinson with a Glock 40 while Corey was dealing drugs. Dee Ann Hudson described seeing assorted guns at the home shared by Michael Scott and his girlfriend, including a .38 revolver that was generally left on the coffee table and what looked like an assault rifle in a closet. Hudson also related an episode where Scott became afraid that the cops were watching his home and gave Hudson a gun to keep for him for a day. Martin Alexander testified that when he picked up Robinson and Scott in East St. Louis, one of them had a 9 millimeter and the other had a Glock, though he was not sure who had which gun. Alexander also stated that both men were always "armed" when they sold drugs. Charlene Branch likewise testified that she had seen Scott and Robinson with guns and that, as far as she knew, they were always "armed" when they were selling crack cocaine together.
Two other witnesses described incidents in which a firearm was used in connection with collection of a debt. Terrell Kempfer testified to an incident in which he saw Robinson walking a man named Demetrius Johnson across a yard with a gun pointed at his chest; Robinson was threatening to shoot Johnson over $40 that was owed. Issac Bratcher, a special agent with the F.B.I., testified that in August of 1994, while questioning Robinson in connection with an armed robbery in Carbondale, Illinois, Robinson admitted that he been in Carbondale with Michael Scott to "make some money" and collect on a debt. According to Bratcher, Robinson admitted during this questioning that he had brought a 9 millimeter assault pistol, while Scott had come with a Glock .40 caliber handgun. Robinson recounted to Bratcher that he and Scott travelled to a housing project area known as "Crack Alley," broke up a dice game that the "debtor" was involved in by displaying their guns, and then took the money left behind when everyone scattered. Robinson also stated that he then fired his gun into the air two or three times before he and Scott left the scene. *fn7 The government maintains that the Scott/Robinson crack cocaine conspiracy ended with Robinson's arrest for the armed robbery in August 1994.
Robinson was tried on June 12-13, 1995. He was convicted by a jury, in approximately seventeen minutes, of both counts charged in the indictment: conspiracy to possess with intent to distribute cocaine base and using or carrying a firearm in relation to a drug trafficking offense. Robinson was sentenced to 151 months on the conspiracy count, an additional 60 months on the firearms count, and five years of supervised release. In addition, the court ordered him to pay a $3000 fine and a $100 special assessment.
A. 18 U.S.C. sec. 924(c)(1)
We begin with Robinson's appeal of his conviction for using or carrying a firearm in relation to a drug trafficking offense. The statute reads as follows: "Whoever, during and in relation to any crime of violence or drug trafficking crime . . ., uses or carries a firearm, shall, in addition to the punishment provided for such a crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . ." 18 U.S.C. sec. 924(c)(1). Robinson challenges the sufficiency of the evidence presented at trial on this charge, in light of the Supreme Court's recent decision in Bailey v. United States, 116 S. Ct. 501 ...