Friday, March 25th, 2005

Gun Convictions Upheld on Sufficiency Challenge, and District Court’s Error in Failing to Disclose Pretrial Services Report to Defendant Was Harmless

United States v. Lewter, Docket No. 04-2546 (2d Cir. March 24, 2005) (Meskill, Jacobs, and Straub) (Op. by Jacobs): In this case, the Court upheld the defendant’s conviction against a sufficiency challenge on two gun charges — one for possessing a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)(1)(A)) and the other for possessing a gun with an obliterated serial number (18 U.S.C. § 922(k)). The Court also found that while the district court erred in refusing to disclose the defendant’s pretrial services report to the defendant for use at trial, the error was harmless.

The facts are simple. Government agents executed a search warrant on defendant’s apartment, and found him sitting on his bed. Under the bed was a loaded .357 magnum revolver. On a nearby dresser was a scale with white powder on it. Inside the dresser were 71 grams of crack and a small amount of heroin. Upon being read his Miranda rights, the defendant allegedly stated that “the drugs were in the dresser” and that “he was not just your ordinary drug dealer.”

At trial, counsel sought to review the report prepared by the pretrial services office after Lewter was arrested, on the theory that the report contained a statement indicating that he was high on PCP at the time and thus that his alleged post-arrest statements were not reliable. The district court refused to do so, and the defendant was convicted of possessing with intent to distribute crack and heroin, as well as the 924(c) charge and the 922(k) charge. The opinion does not disclose the sentence ultimately imposed, but it undoubtedly was a substantial one given the nature of the charges.

On appeal, Lewter raised sufficiency challenges to the two gun convictions, and argued as well that the trial court’s refusal to disclose the pretrial report to him was error. The Circuit affirmed.

1. Regarding the 924(c) count, the Circuit declined to adopt (as some other Circuits have) a list of factors relevant to the determination of whether a gun was possessed “in furtherance of” the drug trafficking charges, “since each case has its own wrinkles.” Rather, “the test is [simply] whether a reasonable jury could … find beyond a reasonable doubt that possession of the firearm facilitated a drug trafficking crime . . . ,” keeping in mind that ” ‘in furtherance’ means that the gun afforded some advantage (actual or potential, real or contingent) relevant to the vicissitudes of drug trafficking.” Op. at 6. And because the evidence was sufficient to find that the defendant possessed a gun to “defend [his] drug stash, [which] clearly furthers the crime of possession with intent to distribute,” the Court upheld the 924(c) conviction.

2. Regarding the 922(k) count, the Court rejected the defendant’s argument that because the serial number on the gun was so neatly obliterated, it was not self-evident from the appearance of the gun that a serial number had ever been there. The Court concluded that a reasonable jury could have found that Lewter knew that the serial number had been obliterated, relying on the fact that the gun was in the defendant’s apartment and within arm’s reach (thus suggesting his familiarity with it); that he was a drug trafficker, and thus would want an untraceable gun; and that the gun was valuable (worth $500 – $600), and thus that he would likely have inspected it carefully before purchasing it. The Court also pointed out that the jury inspected the gun during deliberations, and was thus competent to decide whether the defendant would have realized that the serial number had been obliterated.

3. Regarding the district court’s refusal to disclose the pretrial report to the defense at trial, the Court concluded that this was error, citing 18 U.S.C. § 3153(c)(1) (“Each pretrial services report shall be made available to the attorney for the accused …”). The Court found the error harmless, however, since (1) the probative value of the testimony sought was minimal, given that “this line of attack on the reliability of Lewter’s statements [i.e., his post-arrest statements were not reliable because he was high on PCP] was unpersuasive”, given the other evidence; and (2) “Lewter was [in any event] allowed to marshal other evidence at trial suggesting that he was intoxicated at the time of his arrest.” Op. at 13.

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