United States District Court, Southern District of New York
February 19, 1991
UNITED STATES OF AMERICA,
LUIS ROMERO LOPEZ, A/K/A "LUIS DIAZ", "LUIS DIAZ", "LUIS ORTIZ", DEFENDANT.
The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
Defendant Luis Romero Lopez (hereinafter "Romero") was
charged in a five-count indictment. The first three counts
alleged substantive violations of the federal narcotics laws,
21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 845a(a). The
fourth count charged Romero with the use of firearms during and
in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1). The fifth count charged Romero with
possessing a firearm that was not registered to him in the
National Firearms Register and Transfer Record, in violation of
26 U.S.C. § 5861.
Trial commenced before a jury. At the conclusion of the
government's case, Romero moved under Rule 29, Fed.R.Crim.P.,
for a judgment of acquittal on Counts Four and Five. The Court
denied the motion as to Count Five but granted it as to Count
Four.*fn1 This Opinion sets forth the Court's reasons for
granting Romero judgment of acquittal on Count Four.
Count One of the indictment charged that on or about May 1,
1990, in the Southern District of New York, Romero distributed
and possessed with intent to distribute approximately 27.6
grams of heroin.
Count Two charged:
On or about May 16, 1990, in the Southern
District of New York, LUIS ROMERO LOPEZ, the
defendant, unlawfully, intentionally and
knowingly did possess with the intent to
distribute a Schedule I controlled substance, to
wit, approximately 24 grams of a mixture and
substance containing a detectable amount of
heroin, within 1,000 feet of the real property
comprising St. Raymond's Elementary School, 2830
East Tremont Avenue, Bonx, New York.
Count Three charged:
On or about May 16, 1990, in the Southern
District of New York, LUIS ROMERO LOPEZ, the
defendant, unlawfully, intentionally and
knowingly did possess with intent to distribute a
Schedule I controlled substance, to wit,
approximately 46 grams of a mixture and substance
containing a detectable amount of heroin, within
1,000 feet of the real property comprising St.
Raymond's Elementary School, 2380 East Tremont
Avenue, Bronx, New York.
Count Four of the indictment charged:
On or about May 16, 1990, in the Southern
District of New York, LUIS ROMERO LOPEZ, the
defendant, during and in relation to a drug
trafficking crime, namely, possession with intent
to distribute a mixture and substance containing
a detectable amount of heroin, for which he may
be prosecuted in a court of United States,
unlawfully, willfully and knowingly, did use and
carry firearms, to wit, a 12 gauge E.R.A.
sawed-off shotgun, a 38 calibre Smith and Wesson
revolver, and a 9 millimeter Heckler and Koch
semi-automatic hand gun.
Count Five charged that on or about May 16, 1990, in the
Southern District of New York, Romero possessed the shotgun
referred to in Count Four, which was not registered with the
National Firearms Register and Transfer Record.
Although the indictment does not say so explicitly, the
evidence at trial made it apparent, and counsel for the
government acknowledged during oral argument on the Rule 29
motion, that Count Two of the indictment was "the charge on
which the § 924(c) charge rests." Tr. 393.
The Government's Proof
The government's drug case was made by a confidential
informant who put Romero in contact with David Dongilli, an
agent of the federal Drug Enforcement Agency acting in an
undercover capacity. The May 1, 1990 violation charged in
Count One of the indictment came about when Dongilli and the
confidential informant met with Romero and another individual
at the corner of Third Avenue and 86th Street in Manhattan.
Romero instructed Dongilli to follow him in his car to an
address at 2331 Powell Avenue in the Bronx, where Romero
maintained an apartment. Romero entered the building at 2331
Powell Avenue, came out again ten minutes later and approached
Dongilli, who was waiting in his car, and handed Dongilli a
quantity of heroin wrapped in a plastic bag, for which
Dongilli paid the previously agreed price.
Dongilli had subsequent telephone conversations with Romero
looking towards a further purchase. Some of those telephone
conversations were recorded. Between May 1 and May 16, 1990
Dongilli placed telephone calls to Romero at three telephone
numbers: a mobile telephone Romero maintained, the Powell
and an apartment at 1725 Purdy Street, the Bronx, where Romero
also maintained an apartment.
In the telephone calls subsequent to May 1, 1990 Dongilli
was attempting to negotiate a purchase of two ounces of heroin
from Romero. On May 16, 1990 at about 4:25 p.m. Dongilli
telephoned Romero at the Powell Avenue number. Dongilli
testified on direct examination:
Q. What did the defendant say at that time, or
what did you both say at that time?
A. He told me he was in possession of 2 ounces of
heroin and that I could meet him at East Tremont
in front of the Sizzler Restaurant.
Q. Is that on the intersection of East Tremont
and another road?
A. Yes, East Tremont and Purdy. Tr. 294.
At about 7:00 p.m. on May 16, Dongilli drove to the parking
lot of the Sizzler Restaurant at the intersection of East
Tremont Avenue and Purdy Street. Dongilli parked his car and
stood on the sidewalk on East Tremont Avenue. At about 7:20
p.m. Romero appeared with another male in a blue Oldsmobile.
Romero left his car, approached Dongilli, and said "that he
had 2 ounces of heroin" but was willing to sell Dongilli only
one. Tr. 295. Dongilli agreed to purchase the lesser amount
and he and Romero agreed on the price. Dongilli asked who the
second male was. Romero identified him as his brother
"George." Dongilli then testified:
He [Romero] then told me the heroin was in a
nearby location and he would be back shortly. At
that time him, Luis Lopez [as Dongilli referred
to him] and his brother walked I believe
southbound on Purdy Street. At that time I got
into my car.
Q. Did there come a time when the defendant
returned to the parking lot?
A. Yes. I saw them walking north on Purdy Street
in the direction of myself. Once they finally
walked over to my car, the brother entered the
blue Oldsmobile and Luis Lopez entered my car. At
that time he pulled out a paper towel. Inside the
paper towel was a Zip-Loc bag which had the ounce
of heroin in it. Tr. 296-97.
At that point Dongilli executed an arrest signal and back-up
agents placed Romero under arrest.
The government reverted to the telephone call at 4:25 p.m.
on May 16 on redirect examination:
Q. As both defense counsel and you discussed,
during that call you and Lopez arranged the
meeting that evening, right?
A. Yes, we did.
Q. And Lopez told you to meet him somewhere?
A. East Tremont and Purdy Avenue. Q. He also told
you something else during that call, didn't you?
A. Yes. He also told he [sic] was in possession
of the 2 ounces of heroin. That is when we set up
the meet, after that.
Q. He told you he was in possession of it at the
time, when you were talking to him?
A. Yes, sir. He said he was in possession of the
2 ounces. Tr. 336.
Shortly after the arrest, the investigating agents obtained
warrants to search the apartments Romero maintained at the
Purdy Street and Powell Avenue buildings. These buildings are
about 14 city blocks distant from each other.
The quantity of heroin referred to in Count Two of the
indictment is that quantity which Romero handed over to
Dongilli immediately before his arrest on May 16. The search
of the Purdy Street apartment on May 16 led to the discovery
of the additional quantity of heroin referred to in Count
Three. The agents also found in the Purdy Street apartment
cutting agents for the dilution of heroin, a triple beam scale
and wooden block with white powder substance upon them, a
quantity of glasseine bags commonly used for the marketing of
smaller amounts of heroin, hand stamps used to place "trade
names" on the glasseine bags, and inked stamp pads.
The search of the Powell Avenue apartment, also conducted on
May 16, disclosed no drugs. The agents did find a triple beam
scale upon which no powder residue appeared, and a box of
unstamped glasseine envelopes. They also found the three
firearms described in Count Four of the indictment.
The government's theory in charging Romero with violation of
18 U.S.C. § 924(c)(1) is that he used the firearms found in the
Powell Avenue apartment "during and in relation to" his
possession of the 24 grams of heroin referred to in Count Two
which he handed over to agent Dongilli at the intersection of
East Tremont Avenue and Purdy Street immediately prior to
Romero's arrest on May 16.
Count Four charges Romero with violating
18 U.S.C. § 924(c)(1). The statute provides in pertinent part:
Whoever, during and in relation to any . . . drug
trafficking crime . . . for which he may be
prosecuted in a court of the United States, uses
or carries a firearm, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime, be sentenced to
imprisonment for five years, . . .
Rule 29 requires a judgment of acquittal on a particular
charge at the close of the government's case "if the evidence
is insufficient to sustain a conviction of such offense . . ."
The Court, in evaluating a Rule 29 motion, is required to view
the evidence in the light most favorable to the government,
including whatever reasonable inferences may be drawn from
that evidence. A reasonable mind must be able to conclude
guilt on each and every element of the charged offense; but
the trial court should not substitute its own determination of
the credibility of witnesses, the weight of the evidence, or
the reasonable inferences to be drawn for that of the jury.
See, e.g., United States v. Mariani, 725 F.2d 862, 865 (2d Cir.
1984), and cases cited.
In the case at bar, the government's opposition to Romero's
Rule 29 motion proceeded from the theory that the jury could
reasonably infer Romero possessed at the Powell Avenue
apartment the heroin which he delivered to Dongilli in the
vicinity of the Purdy Street apartment. In oral argument, the
government contended that Romero had admitted as much in his
4:25 p.m. telephone conversation (not recorded) with Dongilli.
Thus the counsel argued:
. . As we heard testimony from Dave Dongilli,
the defendant admitted having drugs to the agent
on the day with which he is charged on the § 924(c)
count in the Powell Avenue Apartment. Tr. 373.
He [Romero] admits himself that he had 2 ounces
at the Powell Avenue address, that is certainly
evidence of possession with intent to distribute
at the Powell Avenue address in conjunction with
the guns. Tr. 376.
In this case the defendant said in his own words
that he had those drugs in that location [Powell
Avenue] in the same quantity at a price which he
three hours later sells to the undercover agent.
In point of fact counsel, inadvertently I am sure,
overstated the evidence. On direct examination Dongilli quoted
Romero as having said that "he was in possession of 2 ounces
of heroin and that I could meet him at East Tremont in front
of the Sizzler Restaurant." Tr. 294. On redirect Dongilli
testified that Romero told him "that he was in possession of
the 2 ounces of heroin. That is when we set up the meet, after
that." Tr. 336. Romero did not tell Dongilli where he
possessed the heroin; and trial judges traditionally instruct
jurors that "possession" can be actual, immediate, and
physical, or constructive, in the sense of exercising dominion
and control over an object located somewhere else.
It is a close question whether the jury could reasonably
infer that Romero possessed the heroin in the May 16
transaction at the Powell Avenue apartment. To be sure, the
May 1 transaction, which took place in front of the Powell
Avenue building, quite likely involved the delivery by
Romero to Dongilli of heroin that Romero previously possessed
in the Powell Avenue apartment. Certainly the jury could so
find, and if that was all there was to the evidence, the jury
could clearly reasonably infer that the heroin delivered on
May 16 also came from the Powell Avenue apartment. But that is
not all there was to the evidence. On May 16 the Purdy Street
apartment contained quantities of heroin, and the Powell
Avenue apartment contained none. Furthermore, when Romero met
Dongilli in the early evening of May 16 in the vicinity of the
Purdy Street apartment, Romero told Dongilli that "the heroin
was in a nearby location and he would be back shortly." Tr.
296. Romero and his companion then walked from the restaurant
parking lot south on Purdy Street, toward the building in
question, and then returned walking north towards the parking
lot, away from that building, bringing the heroin.
Those circumstances argue in favor of an inference that the
heroin Romero handed Dongilli on May 16 was possessed by
Romero at the Purdy Street apartment, and not at the Powell
Avenue apartment. If that was so, the government's theory of
§ 924(c)(1) liability in Count Four loses its essential
predicate. But there was other evidence available to the
government to support its inference, namely, that Romero
brought two ounces of heroin from the Powell Avenue address and
went to Purdy Street to repackage it in the smaller one ounce
quantity. I could not, consistent with Mariani, base Romero's
directed verdict of acquittal on Count Four upon a holding that
the jury could not reasonably infer Romero's possession of the
heroin in question at the Powell Avenue apartment. Rather, the
analysis which follows assumes that prior to the May 16
transaction Romero possessed that specific quantity of heroin
at the Powell Avenue apartment.
The gun charge was subject to Rule 29 dismissal because,
under Second Circuit authority, the jury could not reasonably
have found use by Romero of a firearm during and in relation
to the drug trafficking crimes established by the proof.
Section 924(c)(1) separately punishes an offender who,
"during and in relation to any drug trafficking crime. . .,
uses or carries a firearm . . ." Carrying a firearm is not
implicated in this case. The decisive issue is Romero's "use"
of the firearms found in the Powell Avenue apartment "during
and in relation to" the May 16 drug trafficking crime alleged
in Count Two.
The present wording of section 924(c)(1) derives from a 1984
amendment to the statute. The original wording dealt with use
and carriage in separate subsections. As originally enacted,
the statute provided for an enhanced penalty in respect of:
(c) Whoever —
(1) uses a firearm to commit any felony for
which he may be prosecuted in a court of the
United States, or
(2) carries a firearm unlawfully during the
commission of any felony for which he may be
prosecuted in a court of the United States, . . .
While the Supreme Court has characterized the legislative
history of § 924(c) as "sparse," Simpson v. United States,
435 U.S. 6, 15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978), there has
been judicial notice of the statement of Congressman Poff, who
proposed the statute, that it was intended "to persuade the man
who is tempted to commit a federal felony to leave his gun at
home." 114 Cong.Rec. 22231 (1968), quoted in United States v.
Gironda, 758 F.2d 1201, 1214 (7th Cir. 1985).
The 1984 amendment established as the predicate offense for
"use" of a firearm "any crime of violence" instead of "any
felony," and substituted the phrase "during and in relation
to" for the word "during." In 1986, the statute was again
amended to add "drug trafficking crime" as a predicate
The Second Circuit considered the legislative history of the
1984 amendment in United States v. Feliz-Cordero, 859 F.2d 250,
254 (2d Cir. 1988):
The legislative history of the 1984 amendment
indicates that the "in relation to" language was
intended to make explicit that a person could not
under section 924(c) for possessing a firearm
during the commission of an entirely unrelated
crime. S.Rep. No. 225, 98th Cong., 2d Sess. 1,
314 n. 10 (1983), reprinted in 1984 U.S.Code Cong.
& Admin.News 3182, 3492 n. 10. Thus, section 924(c)
requires more than mere possession of a firearm.
Rather, there must be some relation or connection
between the firearm and the underlying crime. The
necessary relation or connection between possession
of a firearm and the underlying crime is
established "if from the circumstances or otherwise
it could be found that the defendant intended to
use the gun if a contingency arose or to make his
escape." Id. (emphasis added). Id. at
In the light of that legislative history, the Second Circuit
in Feliz-Cordero summarized the proof necessary to sustain
conviction of one who "uses" a firearm:
Based on the foregoing analysis, in order for
possession of a firearm to come within the "uses"
provision of section 924(c), one of the following
is required: i) Proof of a transaction in which
the circumstances surrounding the presence of a
firearm suggest that the possessor of the firearm
intended to have it available for possible use
during the transaction; or ii) The circumstances
surrounding the presence of a firearm in a place
where drug transactions take place suggest that
it was strategically located so as to be quickly
and easily available for use during such a
Applying those standards, the Second Circuit reversed a
conviction for firearm use. The facts were these. Government
agents had agreed to purchase "crack" from one Muniz and
another individual. An agent, acting in undercover capacity,
drove Muniz and the other target to an address at 144 Wyckoff
Avenue, Brooklyn. After the transaction went down, the agents
arrested Muniz, who quickly agreed to cooperate. Muniz told
the agents that on the day of his arrest, he had entered
Apartment 3 at 144 Wyckoff Avenue, the residence of defendant
Cordero. Cordero was not there, so Muniz went upstairs to
Apartment 5, defendant Encarnacion's residence. Muniz obtained
150 vials of "crack" from Encarnacion in Apartment 5. This
occurred on February 13, 1987. After his arrest and agreement
to cooperate, Muniz was outfitted with a recording
transmitter. Muniz returned to Apartment 3 where both
defendants were waiting. The prior "crack" transportation was
discussed and the conversation recorded. A warrant was
obtained to search Apartments 3 and 5. The warrants were
executed on February 18. The results of the searches are
summarized by the court of appeals as follows:
In Apartment 3 the agents found, among other
things, a small quantity of cocaine, drug
records, approximately $11,000 in cash, a beeper,
and in a bedroom dresser drawer, a .38 caliber
Smith & Wesson revolver loaded with 5 rounds of
ammunition, and additional rounds of ammunition.
In Apartment 5 the agents found, among other
things, cocaine and cocaine base, plastic vials,
a scale, a hot plate, strainers, straight edge
razor blades, and a quantity of chemicals used to
cut cocaine. The agents seized all of the items
Both Cordero and Encarnacion were convicted of one count of
conspiracy to possess cocaine base with intent to distribute;
two counts of possession with intent to distribute; one count
of distribution; and one count of carrying or using a firearm
in relation to a drug trafficking crime, in violation of §
The Second Circuit held that viewing these facts in the
light of the evidentiary requirements it had articulated, the
firearm conviction could not stand:
In the present case, the presence of a firearm in
a dresser drawer does not meet either of the
requirements set out above. On the evidence
presented, there is no basis to conclude that the
gun would have been quickly accessible if needed.
Rather, under the circumstances of this case, the
intent to use the firearm must be presumed from
the fact that a loaded gun was found in the same
room as drug paraphernalia during the
course of a search pursuant to a warrant. This is
not sufficient evidence to sustain a conviction,
even in light of our recognition of the frequent
connection between firearms and narcotics
trafficking. Id. at 252.
In Feliz-Cordero the government unsuccessfully relied upon
United States v. Grant, 545 F.2d 1309
(2d Cir. 1976), cert.
denied, 429 U.S. 1103
, 97 S.Ct. 1130
, 51 L.Ed.2d 554 (1977).
The Feliz-Cordero court distinguished Grant:
Application of the test set out above to the
facts of Grant shows that it is clearly
distinguishable from the evidence in the present
case. In Grant, it was apparent from the
circumstances surrounding the presence of the
firearms that the drug dealers intended to use the
guns. The evidence established that there were many
weapons strategically located, within easy access,
in a "veritable fortress" in which security of the
drug operation was the prime concern. Id. at
1310-13. Id. at 254.
It is also pertinent to observe that the firearms leading to
the § 924(c)(1) conviction in Grant were found in an apartment
containing sizable amounts of cocaine. See 545 F.2d at 1312 (".
. . the evidence established that Grant used the guns as part
of a tight security operation to protect large quantities of
cocaine and hence to commit the felony of possessing cocaine
with intent to distribute it.")
Seven months after Feliz-Cordero, a different Second Circuit
panel decided United States v. Meggett, 875 F.2d 24 (2d Cir.),
cert. denied, ___ U.S. ___, 110 S.Ct. 166, 107 L.Ed.2d 123
(1989). In the case at bar, the government argued that Meggett
changed the rule of Feliz-Cordero:
THE COURT: . . . I am asking you whether in the
government's view the Feliz-Cordero rule is
unchanged by any of the subsequent cases, and if
so, how has it been changed.
MR. WAINSTEIN: Well, I would think that the
Meggett case has certainly changed it. It would be
by explicitly upholding Judge Leisure's jury
instructions in that case.
THE COURT: It changed it.
MR. WAINSTEIN: Yes.
If the Second Circuit in Meggett overruled Feliz-Cordero, it
did so sub silentio, and in the face of a professed
determination to adhere to that earlier decision. The Meggett
court explained the holding in Feliz-Cordero in these terms:
Implicitly recognizing the teaching of the prior
case law to the effect that "use" requires
possession of a gun under circumstances where the
weapon is so placed as to be integral part of the
offense, we emphasized the absence of proof that
the defendants in Feliz-Cordero had placed the
weapon to have it available for easy use during the
transaction. 875 F.2d at 29.
In Meggett the Second Circuit affirmed a gun charge
conviction on the following facts. The case involved the
distribution of heroin to an undercover agent on four separate
occasions. On each occasion the source of the heroin was one
Bradley, and the heroin "originated from or passed through
Bradley's apartment 3G, 990 Anderson Avenue, in the Bronx." 875
F.2d at 25. The middleman between Bradley and the purchasing
undercover agent, a City detective named Baxter, was Bradley's
co-conspirator Meggett. On the first of the four transactions,
Meggett obtained heroin from Bradley at Apartment 3G and sold
it to Baxter, the delivery taking place in Manhattan. On the
second distribution, Meggett went to apartment 3G, obtained a
sample of better heroin from Bradley, and gave that sample to
Baxter, also in Manhattan. The third and fourth distributions
both occurred on the same day. Meggett telephoned Bradley at
the apartment, was advised that samples of heroin were
available, went to the apartment, picked up a sample, and
delivered the sample to Baxter. Meggett returned to apartment
3G and, pursuant to Baxter's instructions, called Baxter on a
beeper phone. Baxter stated he wished to buy an additional
quantity of heroin, Bradley gave Meggett the three ounces of
heroin at apartment 3G, and both Meggett and Bradley drove to a
in Manhattan, where Meggett made the delivery to Baxter and
both Meggett and Bradley were arrested.
During the evening of the arrests, the agents obtained a
search warrant for Apartment 3G. The occupant of the
apartment, Bradley's wife, refused to open the door. The
agents obtained entrance by use of a battering ram. They found
Bradley's wife in the bathroom disposing of the contents of 11
clear plastic bags which were scattered through the bathroom.
The toilet bowl was filling with water. Off-white powdery
residue was found scattered throughout the bathroom. Other
items seized at the apartment included a small foil packet of
cocaine, a triple beam balance scale, an empty bottle of
cutting agent, and over 100 empty vials with colored stoppers.
The agents also seized at the apartment five firearms, four of
which were operable, and a supply of ammunition.
These firearms gave rise to the gun charge against Bradley,
who admitted he owned the guns found in Apartment 3G, but
stated so that he did so only as a gun collector. Judge
Leisure charged the jury in part:
You should note . . . that in order for the
government to sustain its burden of proof that
the defendant used a firearm, it is not necessary
for the government to establish that the weapon
was fired. It is sufficient if the proof
established that the firearm furthered the
commission of the drug trafficking crime or was
an integral part of the underlying crime being
committed. 875 F.2d at 27.
The jury convicted Bradley on the gun charge. The Second
Circuit affirmed. It approved Judge Leisure's instruction, and
The evidence justified conviction. The jury could
reasonably conclude that the five loaded firearms
in Bradley's apartment were on hand to protect
that apartment as a storage and processing point
for large quantities of narcotics and that
therefore the presence of weapons furthered or
facilitated the narcotics operation and was an
integral part thereof.
The Second Circuit referred to a number of earlier cases
involving comparable facts, including Grant, supra.
Bradley contended on appeal that the use of the firearm must
occur "in connection with the ultimate object of the
conspiracy as distinct from a preliminary stage," so that his
conviction could not stand because there was no proof of the
use of a firearm at the scenes of distribution in Manhattan.
Rejecting that argument, the Second Circuit said:
There is no merit to this argument. The
conspiracy count in the indictment charged that
it was "a part and object" of the conspiracy that
Bradley and others would both distribute heroin
and possess heroin with intent to distribute.
Thus Bradley's possession of heroin at his
apartment was a "part and object" of the crime of
conspiracy, just as much as distribution to an
ultimate purchaser. Use of firearms in connection
with such possession was a proper basis for
conviction on the firearms count. Id. at 29
Three months after Meggett, the Second Circuit decided United
States v. Alvarado, 882 F.2d 645
(1989), cert. denied, ___ U.S.
___, 110 S.Ct. 1114
, 107 L.Ed.2d 1021 (1990). In Alvarado a gun
charge conviction was affirmed on appeal. The Alvarado court
quoted Meggett's interpretation of Feliz-Cordero, see 882 F.2d
at 653, and affirmed the gun conviction on the following facts.
One Colon, a confidential informant, made several visits to
defendants' apartment at 2329 First Avenue to purchase
cocaine. On November 10, 1987, Colon purchased a small
quantity of cocaine at the apartment. On November 13, he
returned and purchased a larger amount of cocaine. On November
17, Colon returned for a third time and purchased another
quantity of cocaine. On November 18, he returned to the
apartment a fourth time, and was told that there was nothing
to sell, but that he should return later. Upon Colon's return,
some minutes later, the occupant of the apartment, a youth
named Alex, told Colon that he would have to buy from one
"Choco," who was selling for
Alex in the street. Colon purchased a bag of cocaine from
Choco. On November 19 Colon returned to the apartment for the
fifth time, was again directed to buy from Choco in the
street, and did so.
On the evening of November 20, agents executed a warrant at
the apartment. The search revealed 108 grams of cocaine,
glasseine bags, triple beam balance scales, heat sealers,
strainers with a residue of white powder, a loaded pistol in
a drawer, a bullet-proof vest, and a locked safe containing
two loaded handguns and cash. The agents also discovered
documents indicating that the apartment was the residence of
defendant Alvarado and his wife.
Alvarado was convicted on a gun charge and appealed. The
Second Circuit affirmed the conviction. It stated at 882 F.2d
As in Meggett and Grant, the evidence here supports
the jury finding that the several loaded weapons in
Alvarado's apartment were strategically located to
protect the substantial quantities of cocaine that
were packaged and sold in the apartment, as
established both by Colon's several drug purchases
there and the drugs and drug paraphernalia seized
upon execution of the search warrant, and to
provide added security during drug sales. Id. at
Given the close proximity of quantities of cocaine and a
bullet-proof vest to the safe in which two of the firearms
were found, the court of appeals reasoned that the jury could
believe "that Alvarado was quite prepared to use the guns."
The court continued:
A jury could reasonably infer that the guns were
"on hand to protect th[e] apartment as a storage
and processing point for large quantities of
narcotics," and that they "furthered or
facilitated the narcotics operation and w[ere] an
integral part thereof." Meggett, 875 F.2d at 29.
Thus, unlike Feliz-Cordero, there was ample proof
"that the defendants . . . had placed the weapon[s]
to have [them] available for ready use during
[drug] transaction[s]," Meggett, 875 F.2d at 29
(construing Feliz-Cordero), and the evidence was
accordingly sufficient to support a conviction on
count five. Ibid.
In United States v. Torres, 901 F.2d 205
(2d Cir. 1990), the
conviction of one defendant on a § 924(c) charge was affirmed
and that of another reversed. The case involved the "Torres
Organization," which after its inception in Manhattan moved to
the South Bronx and distributed heroin. The Torres Organization
purchased unprocessed heroin in bulk and processed it in
various apartment houses. After the heroin was packaged in
glasseine envelopes, it was delivered to and sold on the
streets by a network of runners and street managers. The
transactions were documented in ledgers which were kept in a
number of apartments leased by individuals connected with the
organization. Eventually, as the result of law enforcement
investigation and surveillances a number of search warrants
were executed. One of the searched apartments was leased by
defendant Natalie Vazquez, where agents found a loaded handgun
under a queen size mattress. The apartment also contained
bundles of heroin, bulletproof vests, over $200,000 in cash,
jewelry appraised in excess of $100,000, a $10,000 gold ingot,
drug records, rubber stamps and stamp pads, a heat sealer, and
address books containing telephone numbers of members of the
Torres Organization. "The apartment was also tied to the Torres
Organization through a recorded telephone conversation which
indicated that a package of heroin was to be dropped off
there." 901 F.2d at 217.
The Second Circuit affirmed Natalie Vazquez' conviction
under § 924(c)(1). Vazquez relied on Feliz-Cordero, but the
court of appeals concluded that the facts of the case more
closely resembled Meggett and Alvarado. The proof in
Torres concerning the Vazquez apartment entitled the jury to
conclude "that the apartment was used for narcotics trafficking
on a continuing basis, bolstering the likelihood that the
weapon seized was used `during and in relation to any . . .
drug trafficking crime' within the meaning of section
924(c)(1)." Id. at 218. The court of appeals rejected Vazquez'
argument that the gun was underneath
a mattress. The Second Circuit cited and paraphrased the
Eighth Circuit's decision in United States v. Matra,
841 F.2d 837, 842-43 (8th Cir. 1988), where the court found "that a
machine gun hidden under a waterbed frame in a locked bedroom
was `an integral part of [the] criminal undertaking' because it
served to protect the cocaine and cash stored in the
apartment." 901 F.2d at 218.
In Torres the Second Circuit reversed the § 924(c)(1)
conviction of defendant Reginald Velez. Velez was one of the
several managers employed by the Organization. He reported to
defendant Nelson Flores, the second in command after the two
Torres brothers. A search of one of the apartments led to the
discovery of a slip of paper itemizing receipts and expenses
given by Velez to Flores, one of the many submitted over a
four-month period covered by seized ledgers, and a
corresponding ledger entry by Flores. The slip filled out by
Velez showed a $150 expenditure for a shotgun with the added
notations: "Bought a shotgun for our protection," and "we had
to buy a gun because their [are] a lot of things happ[en]ing so
we want to feel safe." Flores entered a deduction in his ledger
as follows: "shotgun-150." The shotgun was not seized or
presented in evidence. Velez was convicted under § 924(c)(1).
The Second Circuit reversed, on the ground that the slip and
ledger entry failed to establish that the shotgun was used
"during and in relation to any . . . drug trafficking crime."
The Torres court's analysis of prior Second Circuit authority
We stated in Meggett that statutory use "requires
possession of a gun under circumstances where the
weapon is so placed as to be an integral part of
the offense," 875 F.2d at 29 (construing
Feliz-Cordero), noting that the reversal of the
firearm conviction in Feliz-Cordero resulted from
"the absence of proof that the defendants . . . had
placed the weapon to have it available for ready
use during the transaction," id. even though the
weapon in Feliz-Cordero was found together with
drug paraphernalia in a defendant's apartment.
Here, by contrast, assuming that Velez did purchase
the shotgun as reflected by the slip and ledger
entry, and assuming further that he intended to use
it as stated — "for our protection," it
nonetheless remained to be proved that it was
actually so used. There was no evidence as to where
the shotgun was placed, and no evidence that the
shotgun was ever in fact utilized to protect the
narcotics operation or its proceeds. Under these
circumstances, both the statutory language and our
precedents require the reversal of Velez'
conviction under section 924(c)(1). Id. at 218-19.
Contrary to the government's contention at bar, the Second
Circuit has not reversed or departed from its holding in
Feliz-Cordero. That case continues to be cited and applied.
Feliz-Cordero, Meggett, Alvarado, and Torres contain passages
which, in isolation, may be made to support sweeping
propositions. But the cases are intensely fact-oriented; and
the current state of Second Circuit authority on the statutory
"use" of firearms during drug transactions cannot be divined
without careful analysis of the underlying facts.
So viewed, the government's case against Romero was not as
weak as that against the successful appellant in
Torres; but its proof was not as strong as that against the
successful appellant in Feliz-Cordero. In Feliz-Cordero, the
gun conviction was reversed even though the purchaser had come
to the apartment in which the gun was found in connection with
the drug transaction alleged; discussions concerning that
transaction took place in that apartment; and, in addition to
the gun, the apartment contained cocaine, drug records, a large
amount of cash and a beeper. The Second Circuit reversed the
conviction on the ground that the finding of a loaded gun in
the same room as drug paraphernalia was insufficient to sustain
a § 924(c)(1) conviction. In the case at bar, the undercover
purchaser never came to the Powell Avenue apartment in
connection with the May 16 transaction, and no drugs or cash
were found in that apartment. There was
a scale and unmarked glasseine bags, but nothing to indicate
that the apartment was being used at that time as a place for
the storage of significant amounts of drugs or for the
processing and sale of drugs. In those respects the Powell
Avenue apartment differs not only from the apartment in
Feliz-Cordero, but also from Romero's Purdy Street apartment,
where a quantity of heroin was found, together with
paraphernalia clearly indicating that the apartment was being
used as an active processing mill. Had the guns been found in
that apartment, the case would have gone to the jury. But
Feliz-Cordero, on its facts, controlled the case at bar a
fortiori and so Romero's Rule 29 motion succeeded.
The government's concept of use of a firearm in relation to
a drug trafficking crime would, if sound, permit the
conviction of a defendant who packaged heroin in Hong Kong,
decided to sell it in the Bronx, interrupted his trip for one
night in Denver where he maintained an apartment containing a
gun, journeyed on to the Bronx, and sold the heroin on the
street. The government contended for that result in the Rule
29 colloquy, and it is of course the logical conclusion of its
argument. But I cannot reconcile that argument with the Second
Circuit's requirement that the weapon be so placed as to be an
integral part of the offense, particularly when that criterion
is viewed in the factual context of the cases where
convictions have been reversed (Feliz-Cordero, Torres) as well
as affirmed (Meggett, Alvarado, Torres).
It is not possible to establish a bright line of demarcation
in these cases. However, the Second Circuit has held
repeatedly that to sustain a § 924(c)(1) conviction, the
presence of a weapon must be an "integral part" of a drug
trafficking crime. The adjective is significant. There must be
proof that the presence of the weapon furthered or facilitated
the narcotics operation established by the proof. In all the
cases where convictions were affirmed, the weapons were found
in apartments where quantities of drugs were stored and
processed so as to make possible the transactions revealed by
the proof. It is in such circumstances that the Second Circuit
permits a jury to draw the inferences that the guns were on
hand to protect the apartment as a storage and processing point
for large quantities of narcotics, and that the defendant was
prepared to use the weapons for that purpose. In the case at
bar, the government proved no circumstances from which the jury
could reach those conclusions. On the contrary, within the
context of Romero's May 16 sale of heroin to Dongilli as
charged in Count Two, Romero (in Congressman Poff's phrase)
"left his guns at home."