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November 14, 1996


The opinion of the court was delivered by: LARIMER

 On February 28, 1995, after a jury trial, Arthur Lattimore was convicted on one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Lattimore was sentenced by me to twenty-four months imprisonment on the cocaine count and sixty months imprisonment (to run consecutively) on the Section 924(c) count, for a total of eighty-four months imprisonment. Lattimore now has filed a motion, pursuant to 28 U.S.C. § 2255, to vacate his conviction and sentence on the Section 924(c) count. The Government opposes the motion. For the reasons that follow, the motion is granted.


 I. 18 U.S.C. § 924(c) and Bailey v. United States

 Section 924(c)(1) of Title 18 United States Code provides in relevant part:

Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to imprisonment for five years ....

 Only months after Lattimore was convicted and sentenced, the definition of what it means to 'use' a firearm within the meaning of this statute was clarified by the United States Supreme Court in Bailey v. United States, U.S. , 116 S. Ct. 501 (1995). The Court in Bailey held that to obtain a conviction for use of a firearm under § 924(c)(1), the Government must prove "an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." 116 S. Ct. at 505. 'Use,' the Court said, would include activities such as "brandishing, displaying, bartering, striking with, ... firing or attempting to fire, a firearm," or referring to a firearm so as to intimidate another person. Id. at 508. However, the "inert presence of a firearm, without more, is not enough to trigger § 924(c)(1). ... A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds." Id. Thus, the Court held that the facts in the two consolidated cases under review, in which a firearm had been found in a bag in the locked trunk of one defendant's car, and in a footlocker in the other defendant's bedroom closet, were insufficient to support the defendants' convictions.

 In so ruling, the Supreme Court implicitly overruled prior Second Circuit authority holding that a defendant could be convicted under § 924(c)(1) based on evidence that the firearm was physically available to the defendant or that the defendant intended to use it if the need arose. See, e.g., United States v. Fermin, 32 F.3d 674, 678 (2d Cir. 1994) (firearm in closet), cert. denied, U.S. , 115 S. Ct. 1145 (1995); United States v. Torres, 901 F.2d 205, 217-18 (2d Cir.) (firearm underneath mattress), cert. denied, 498 U.S. 906 (1990); United States v. Alvarado, 882 F.2d 645, 654 (2d Cir. 1989) (firearm inside locked safe), cert. denied, 493 U.S. 1071, 107 L. Ed. 2d 1021, 110 S. Ct. 1114 (1990); United States v. Meggett, 875 F.2d 24, 29 (2d Cir. 1989) (firearms found behind a chair, in a nightstand drawer, in a dresser drawer, and leaning against wall).

 II. Application of Bailey to Lattimore's Case1

 Lattimore's conviction was based upon the following facts adduced at trial.

 On or about March 9, 1994 the Government informant, Dominic Watson, purchased two "dime" bags of cocaine from Lattimore at Lattimore's residence. Watson knew Lattimore well, having purchased drugs from him on numerous prior occasions. On March 9, 1994, as he had done when making drug purchases in the past, Watson first knocked on a window located at the front of the house. This was Lattimore's bedroom window, from which Lattimore could see who was calling. Watson then proceeded to the front door, where Lattimore met him carrying two bags of cocaine that he had brought from the bedroom. The drug transaction was carried out quickly and without discussion or incident in the front hallway of Lattimore's home, just inside the front door. The two men did not proceed any further into the house. Lattimore did not carry a gun and did not mention having a gun (or any other weapon).

 After the drug transaction was completed, Watson asked Lattimore about a pistol, stating that he was interested in buying one. Lattimore then lead Watson to his bedroom where he retrieved a handgun from a dresser drawer. The two men eventually went out onto Lattimore's back porch and Lattimore shot the gun into the air in an effort to demonstrate how loud it was. Watson indicated to Lattimore that he would like a gun just like it. In fact, Watson wanted to buy Lattimore's gun, but Lattimore would not sell it. *fn2"

 Later that day, the Lattimore residence was searched pursuant to a search warrant. Various items were seized from inside the house, ...

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