Appeal from conviction on narcotics and firearm counts in the United States District Court for the Southern District of New York (Peter K. Leisure, J.). Affirmed.
Newman and Altimari, Circuit Judges, and Thomas P. Griesa,*fn* District Judge.
Appellant Robert Bradley appeals from a criminal conviction in the District Court for the Southern District of New York. After a jury trial before Judge Leisure, Bradley was convicted on one count of conspiracy to distribute and possess with intent to distribute heroin, four substantive counts of heroin distribution, one substantive count of possessing heroin with intent to distribute, and one count of using and carrying firearms during and in relation to a drug trafficking crime.
The only contention raised on appeal relates to Bradley's conviction on the firearms count. Since we find no error in connection with this issue the judgment of conviction is affirmed.
This case involved the distribution of heroin to an undercover detective on four separate occasions between August 19 and December 15, 1987. On each occasion the source of the heroin was Bradley. The heroin originated from or passed through Bradley's apartment 3G, 990 Anderson Avenue, in the Bronx.
The first distribution occurred on August 19, 1987. William Meggett, a co-conspirator, called Bradley, who told Meggett that heroin was available. Meggett then went to apartment 3G. There Bradley made a telephone call, and then told Meggett that he needed an hour to get the heroin ready. Meggett left the apartment and returned in about an hour, only to discover that the heroin had not yet arrived. After another short wait, a man referred to as "the Nigerian" arrived and went into the kitchen with Bradley. Bradley then gave Meggett a clear plastic bag containing two ounces of heroin. Meggett left the apartment and went to a location in Manhattan where he sold the two ounces to Cleveland Baxter, an undercover New York City detective, for $12,000. Meggett returned to apartment 3G and gave Bradley $10,400.
The events of the second distribution began on August 24 when Baxter told Meggett that he was not pleased with the quality of the heroin purchased earlier and was interested in obtaining a better grade of heroin. Meggett passed this information on to Bradley by telephone and went to apartment 3G, where Bradley gave him a sample of the better heroin. On September 1 Meggett gave the sample to Baxter at a location in Manhattan, and told Baxter that the price of this kind of heroin was $4,000 or $5,000 per ounce.
Nothing else occurred until the final two distributions on December 15. On this date Meggett telephoned Bradley at apartment 3G. After Bradley stated that samples of heroin were available, Meggett went to the apartment and picked one up. Meggett then travelled to Manhattan, gave the sample to Baxter, and told him that the price was $6,500 per ounce. Baxter told Meggett to call him on his beeper in 30 minutes.
Meggett returned to apartment 3G and called Baxter, who stated that he wished to buy three ounces of heroin. Bradley gave Meggett the three ounces of heroin at apartment 3G and both Meggett and Bradley drove to a restaurant in Manhattan. Upon Baxter's arrival at the restaurant, Meggett went out with Baxter to Baxter's car, where Meggett gave him the three ounces of heroin. Both Meggett and Bradley were arrested.
Later in the evening of December 15, a magistrate issued a search warrant for apartment 3G. At the apartment the search team leader knocked loudly at the door and heard movement within the apartment. Because no one answered the door, the agents used a battering ram to gain entrance after a four minute delay. Once inside, agents found Emily Bradley, Bradley's wife, in the bathroom disposing of the contents of eleven clear plastic bags which were scattered through the bathroom. Agents found the toilet bowl refilling with water. An off-white powdery residue was discovered in the toilet bowl, on the toilet seat, in the wash basin and bathtub, and on the floor. Other items seized at the apartment were a small foil packet of cocaine, a triple beam balance scale, an empty bottle of cutting agent inositol, and over 100 empty vials with colored stoppers. Emily Bradley was placed under arrest.
The eleven empty bags were of the same type as the bag which contained three ounces of heroin involved in the December 15 transaction. A DEA agent testified that such bags typically contain approximately four ounces of heroin and that over $100,000 of heroin was probably destroyed by Emily Bradley.
Also seized at the apartment were five firearms. A .44 magnum, long-barreled revolver loaded with hollow point ammunition was found in a case behind a chair in the living room. Also found in the living room (precise location not shown) was a loaded .32 caliber revolver, better known as a "Saturday Night Special." A loaded Derringer was discovered in a nightstand drawer in the bedroom. A loaded sawed-off shot gun was found in the bedroom between the bedroom dresser and the wall. Finally, a .357 magnum handgun loaded with hollow point ammunition was found in the bedroom dresser. All the weapons were operable except the .32 caliber revolver. Agents seized an additional 25 pounds of hollow point ammunition.
After his arrest, Bradley admitted that he owned the guns found in apartment 3G, but stated that he did so only as a gun collector.
There is no evidence that firearms were present at any of the distributions in Manhattan. There is no evidence that any of the firearms in apartment 3G were fired, brandished, or even displayed during the events occurring at that apartment.
Statute, Indictment and Jury Instruction
The statute on which the firearms charge in this case is based is 18 U.S.C. § ...