United States v. Terrence Brown , 724 F.3d 801 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2737
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T ERRENCE B ROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 1009-2—Robert M. Dow, Jr., Judge.
A RGUED JULY 9, 2013—D ECIDED JULY 30, 2013
Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. A jury convicted the defendant
of having attempted to possess cocaine with the
intention of distributing it, 21 U.S.C. §§ 841(a)(1), 846,
and having “possesse[d]” a firearm “in furtherance of
any such crime,” 18 U.S.C. § 924(c)(1)(A); see United
States v. Castillo, 406 F.3d 806, 811-12 (7th Cir. 2005)—that
is, a drug crime. He was sentenced to 60 months
for the gun crime, the sentence to run consecutively to
2 No. 11-2737
a 175-month sentence for the drug crime. The appeal
challenges only the gun conviction.
The drug offense was an attempt to buy 10 kilo-
grams of cocaine from (unbeknownst to the defendant)
an undercover officer (so naturally the cocaine was
fake). The attempt is criminal though it could not have
led to the completed crime. United States v. Sobrilski, 127
F.3d 669, 674-75 (8th Cir. 1997); United States v. Everett,
700 F.2d 900, 904-08 (3d Cir. 1983); cf. United States v.
Stallworth, 656 F.3d 721, 728 (7th Cir. 2011). The trans-
action took place in the defendant’s SUV. The defendant,
who remained in the driver’s seat the entire time, passed
a bag of cash back to his accomplice, who had moved
from the first to the second row of seats to be next to
the undercover officer. The accomplice gave the bag of
money to the officer, who had placed the bag of fake
cocaine on the floor of the vehicle upon entering.
The officer left with the money. Other officers quickly
appeared and arrested the defendant and his ac-
complice before the defendant could drive off.
The defendant’s gun was found in a secret compart-
ment large enough to hold substantial amounts of drugs
and cash along with weapons, although the exact dimen-
sions are unclear. The compartment was under the
third row of seats. The gun, loaded and in working
order, was the only object in the compartment and the
compartment was closed.
Not only was the defendant at some distance from
the compartment when the transaction took place, but
the compartment could be opened only by following
No. 11-2737 3
a sequence of steps that would take about half a minute
to complete: start the car, press the defrost button, push
down the button to open a rear window, and place a
magnet close to the ignition. The hope was that this
involuted procedure for opening the compartment
would thwart police searches. Also the compartment
couldn’t be opened unless the second row of seats
was folded down and pushed forward—and remember
that the accomplice, and the undercover officer who
was posing as a seller, were sitting on those seats
during the transaction.
Obviously the gun was stored in the compartment to
facilitate the defendant’s drug dealing. No reasonable
jury would have believed the defendant’s testimony that
he had stored the gun there for personal self-defense
because he had been beaten up and in the wake of
that incident had placed the gun (which he already
owned) in the secret compartment to make him “feel
safe.” What a reasonable jury could and the jury in
this case doubtless did believe was that the compart-
ment was a good place in which to store a gun because
the defendant would be highly vulnerable when con-
ducting a transaction involving drugs or money kept in
the compartment. If he opened it to get money to buy
drugs from a would-be seller, the seller might be
tempted to grab all the money in the compartment and
flee without giving over the drugs he’d agreed to sell.
But section 924(c)(1)(A) does not punish possessing a
gun for the general purpose of mitigating dangers as
they arise in one’s career as a drug dealer; the posses-
4 No. 11-2737
sion must be in furtherance of a “drug trafficking crime,”
in this case the transaction with the undercover
agent—a criminal attempt to purchase cocaine and the
only drug crime mentioned. The defendant argues that
the gun couldn’t have furthered that transaction
because the compartment was never opened and
couldn’t have been unless the occupants of the second
row of seats had moved. Had the defendant doubted
the bona fides of the putative seller of the cocaine
(he testified he did not), he would have been likely, it
could be argued, either to have taken the gun out of
the compartment before the transaction took place or
conducted the transaction with the compartment open
and the gun therefore easier for him to get hold of
quickly if need be.
The statutory term “in furtherance of” is unavoidably
rather vague (“possesses” too, perhaps, though in this
case the defendant does not deny possessing the gun when
it was in the secret compartment), and the tendency of
the courts has been to list factors that seem relevant and
leave it to the trier of fact to apply them to the facts of
the case at hand. The canonical factors, first enumerated
in United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th
Cir. 2000), are “the type of drug activity that is being
conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the time
and circumstances under which the gun is found.” For
subsequent invocations of these factors see, e.g., United
States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005); United
No. 11-2737 5
States v. Walker, 657 F.3d 160, 172 (3d Cir. 2011); United
States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008);
United States v. Snow, 462 F.3d 55, 62 n. 6 (2d Cir. 2006).
Rightly, none of the factors is deemed decisive. A
lawfully purchased gun can be used in furtherance of a
drug crime. Even a gun that is unloaded or not in
working condition can be brandished, to intimidate
a participant in a drug deal; used in so “harmless” a
way the gun would still be facilitating a drug crime.
It’s also difficult to see why the type of gun matters or
what the relevance is of the difference between a
stolen weapon and one that while not stolen is
possessed illegally (maybe because the defendant is a
felon). And “accessibility,” “proximity,” and “circum-
stances” are all open-ended terms.
It can be easier to determine “furtherance” by a
holistic analysis than by dissecting the issue into parts;
and so we’ll eschew the conventional trudge through
factors and simply ask whether the defendant’s gun
facilitated the drug crime. It did, as the jury found.
True, the gun was not so easy to get to as it would
have been in an open compartment in the front row of the
SUV’s seats, or on his person; but he was trading grabbing
ease for a reduced risk that the police would find the
gun in a search of the vehicle. True too that he was
sitting in the driver’s seat rather than within reaching
distance of the compartment. But he had to be prepared
to make a quick getaway; so again he was trading
easy access to the gun for a reduced risk of being cap-
tured. These tradeoffs are like the tradeoff a person
makes who owns a gun for personal defense but locks
6 No. 11-2737
it in a safe in his home to prevent his children from
getting at it. That doesn’t mean the gun isn’t for his
personal defense. Likewise the tradeoffs our defendant
made did not render his possession of the gun irrelevant
to the drug transaction. If the purported seller of the
drugs acted up during it, the defendant might be able
to reach the gun in time to prevent serious trouble.
Indeed if the seller snatched the bag of money and
fled without giving the defendant’s accomplice the
drugs, the defendant might be able to grab the gun in
time to give chase to the seller and interrupt
his flight, whether by threat or shooting. Moreover, it
would have been easier for the defendant to grab the
gun had the undercover officer sat elsewhere than in
the second row of seats; the defendant hadn’t invited
him to sit there. And probably the defendant intended
after completion of the purchase of the drugs to place
them in the secret compartment in order to reduce the
likelihood that the police would find them or his accom-
plice steal them. The gun’s presence in the compart-
ment would further increase the security of the drugs.
The transaction was interrupted; and since the only
drug offense the defendant was convicted of was an
attempt to possess cocaine, it might seem that secreting
the drugs in the compartment could not have been in
furtherance of that crime. Not so; he may have been
emboldened to agree to the transaction by knowledge
that he had a secret place in which to store the drugs
and that a loaded gun in the place of storage made
them less likely to be snatched. If the presence of the gun
made it likelier that the defendant would attempt the
illegal drug purchase that turned out (the attempt, that
No. 11-2737 7
is) to be his undoing, his possession of the gun
facilitated the attempted sale. And so a reasonable
jury could find.
Speaking of “possession,” we note in closing, and with
approval, the parties’ agreement that the defendant
“possessed” the gun, which is another element of the
section 924(c)(1)(A) offense and of other gun offenses
(also drug offenses) as well, even though the gun was at
a distance from him.
The concept of possession in criminal cases has under-
gone considerable elaboration in recent years, as when
we read in a section 924(c) case decided by the District
of Columbia Circuit that “possession, of course, can be
either actual or constructive. Constructive possession
requires evidence supporting the conclusion that the
defendant had the ability to exercise knowing dominion
and control over the items in question. Mere proximity
to the item at the time of seizure is not enough; but prox-
imity coupled with evidence of some other factor . . . is
enough to sustain a guilty verdict.” United States v.
Morris, 977 F.2d 617, 619-20 (D.C. Cir. 1992) (citations and
quotation marks omitted). Similar formulas for attempting
to distinguish between “actual” and “constructive”
possession appear in countless 924(c)(1)(A) cases, see, e.g.,
United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009);
United States v. Perez, 663 F.3d 387, 392 (8th Cir. 2011);
United States v. King, 632 F.3d 646, 651-52 (10th Cir. 2011),
and in other gun (also drug) cases as well, such as cases
involving possession of firearms by felons. See, e.g., United
States v. Griffin, 684 F.3d 691, 695-97 (7th Cir. 2012).
8 No. 11-2737
The formulas do not, however, explain clearly the
difference between “actual” and “constructive” possession,
or the utility of drawing the distinction, or how “domin-
ion” (a word no longer in common usage) differs from
“control,” or what “knowing” dominion and control
means. A century ago the Supreme Court remarked that
“both in common speech and in legal terminology, there
is no word more ambiguous in its meaning than posses-
sion. It is interchangeably used to describe actual posses-
sion and constructive possession which often so shade
into one another that it is difficult to say where one
ends and the other begins.” National Safe Deposit Co. v.
Stead, 232 U.S. 58, 67 (1914). As aptly stated in Charles H.
Whitebread & Ronald Stevens, “Constructive Possession
in Narcotics Cases: To Have and Have Not,” 58 Va. L.
Rev. 751, 762 (1972), “the courts have lost sight of the
basic question of whether the defendant did in fact
possess the prohibited items and have applied the termi-
nology of constructive possession as if it were a talisman
to be used without reference to the interaction of the
particular facts of each case.” See also Wayne R. LaFave,
Criminal Law § 6.1(e), pp. 327-29 (5th ed. 2010).
We don’t deny the utility of the distinction—though
it would be clearer, certainly to a jury, if the terms
“actual possession” and “constructive possession” were
replaced by “custody” and “possession”—when the
physical possession is by the defendant’s agent, as in
the National Safe Deposit case, which involved the
storage of a person’s property in a safe-deposit box in a
bank. 232 U.S. at 68. As explained in United States v.
Rawlings, 341 F.3d 657, 658-59 (7th Cir. 2003), “ ‘Possession,’
No. 11-2737 9
a concept much elaborated since its introduction into
Western law by the Romans, has never just meant
clasping something in your hands. The owner of an
automobile possesses it even when it is parked in a
garage and he is miles away. A tenant possesses the
apartment he has rented even when he is away on a trip.
A thief has custody of the goods he steals, but the
owner retains possession. (That is, the thief does not
have the rights of a possessor; he still has the liabilities,
for example as a felon in possession . . . .) To decide
whether a person . . . possesses a gun, therefore, it is
not enough to ask whether the gun is in his hand or
his pocket or even under his pillow or in his desk
drawer. Had [the defendant] said to one of his
coconspirators—’You hold this gun that I’ve bought
but never touched, because I’m a felon and I don’t want
to be charged with being a felon in possession, if we
are caught’—this would not negate his possession of
it” (emphasis in original).
These are cases in which custody and possession are
divided (for the owner of the property would certainly
describe it as his possession), which strikes us, as we
said, as a clearer articulation of the distinction than
“actual” versus “constructive” possession. But neither
in the D.C. Circuit’s Morris case nor in the present case
is the distinction, however worded, necessary to draw.
Morris sold drugs in the living room of his small (one-
bedroom) apartment, and two loaded guns were found
under the cushions of the living room couch, where he
was sitting when police unexpectedly appeared and
arrested him. 977 F.2d at 619. Obviously the guns were
10 No. 11-2737
his possessions. He lived there by himself. (Compare
the discussion of the complications created by joint resi-
dence in United States v. Griffin, supra, 684 F.3d at 695-97.)
What could “constructive” as distinct from “actual”
possession of the contents of one’s own apartment mean
when no one else resides in or even has access to the
apartment? When sitting on his couch was Morris
merely in “constructive” possession of it? If so does
that mean that a couch can’t be “actually” possessed,
except maybe by moving men? Does one “actually pos-
sess” a gun only when one is holding it in one’s hand?
Does one lose possession of one’s home when one
is commuting to work?
Much as in Morris, our defendant’s gun was found in
his SUV (corresponding to Morris’s small apartment),
which he was sitting in. He possessed it, along with
the other contents of the car (such as the items in his
glove compartment and trunk), even though the gun
was several feet away from him (though closer than
the items in his trunk) and it would have taken him a
half minute or so to grab hold of it. Once one
recognizes that “possession” is not limited to holding
something in one’s hand, the occasions for invoking
the term “constructive possession” diminish, as the
parties in this case sensibly recognize.
A FFIRMED.
7-30-13