United States v. Simpson

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 8/19/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 95-3048
MARLIN A. SIMPSON,

Defendant-Appellant.

Appeal from the United States District Court
for the D. Kan.
(D.C. No. 94-10008-01)

Submitted on the Briefs: *

Randall K. Rathbun, United States Attorney, David M. Lind, Assistant United
States Attorney, Office of the United States Attorney, Wichita, Kansas, for
Plaintiff-Appellee.

Michael Gordon Katz, Federal Public Defender, James P. Moran, Assistant
Federal Public Defender, Office of the Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.

Before BALDOCK, BRORBY and EBEL, Circuit Judges.

*
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.
EBEL, Circuit Judge.

After the jury was unable to reach a verdict in his first trial, Marlin

Simpson was convicted on retrial of possession with intent to distribute crack

cocaine and of using or carrying a firearm during and in relation to a drug

trafficking offense. Simpson appeals, claiming: (1) because there was no

manifest necessity for the first mistrial, his retrial was barred by the Double

Jeopardy Clause; and (2) the evidence was insufficient to support his conviction

on either count. Simpson also challenges the use of a prior battery conviction in

his sentencing calculation on the ground that the government failed to provide

sufficient evidence of the validity of that conviction.

I.

Officers of the Wichita Police Department, acting on information from a

confidential informant, obtained a search warrant for a residence located at 2350

North Erie in Wichita. The residence was listed in the city directory as belonging

to Marlin Simpson and his grandmother, Hazel Simpson.

Prior to executing the warrant, officers surveyed the residence and observed

various people arrive, stay inside for one to five minutes, and then leave.

Officers then observed Simpson exit the residence and climb into the passenger

side of a Chevy Nova. The stream of visitors at the residence ceased when

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Simpson left. As Simpson left the residence, he was carrying a handgun, which

he appeared to place under the passenger side front seat. When officers stopped

Simpson a short distance away, he was riding in a second Chevy Nova being

towed by the first Chevy Nova that he had been observed entering. A loaded

Glock 9mm handgun was under the front seat of the vehicle in which Simpson

was riding, and he had a pager on his person. No drugs were found in the car or

on Simpson’s person.

When the warrant was executed at 2350 North Erie, a detective searched

the room that Simpson’s grandmother identified as Simpson’s bedroom. The

detective found: crack cocaine, including eight one-ounce bags of crack in a

Redskins jacket in the closet; scales, baking soda, which is often used to cook

cocaine into crack, and other drug paraphernalia; $480 in cash; and ammunition.

The detective also discovered photographs of Simpson and Simpson’s girlfriend,

and mail addressed to Simpson at that address. After searching the house, police

searched five people they found inside. Simpson’s uncle, Ronald Simpson, was

found with approximately 26 grams of crack cocaine on his person.

Simpson was charged in a superseding indictment with conspiring with

Ronald Simpson to distribute crack cocaine in violation of 21 U.S.C. § 846,

possessing with intent to distribute crack cocaine in violation of 21 U.S.C. §

841(a)(1), and using or carrying a firearm during and in relation to a drug

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trafficking offense in violation of 18 U.S.C. § 924(c)(1). The conspiracy charge

subsequently was dismissed. Simpson’s first trial ended in a mistrial after the

judge determined that the jury could not reach a verdict. At Simpson’s second

trial, the defense offered evidence that for six months preceding the execution of

the search warrant Simpson had not been living at the North Erie address but had

been living elsewhere with a cousin. Simpson claimed he had used the North Erie

address only as a mailing address. The jury convicted Simpson of both counts,

and Simpson appeals.

II.

Simpson first claims that his retrial subjected him to double jeopardy.

When a mistrial is declared without the defendant’s consent, the Double Jeopardy

Clause of the Fifth Amendment bars the retrial of the defendant unless there was

“manifest necessity” for the mistrial. Arizona v. Washington, 434 U.S. 497, 505

(1978). A finding of manifest necessity is within the sound discretion of the trial

court. United States v. Crotwell, 896 F.2d 437, 440 (10th Cir. 1990).

The events leading up to Simpson’s mistrial were as follows: Simpson’s

trial began on the morning of September 13, 1994, and the case was submitted to

the jury at 11:30 a.m. on September 14. Between 4:45 and 5:00 p.m on

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September 14, the jury sent two questions to the trial judge, who responded in

open court. The following portions of his response are relevant:

I will take your second question first: “Can we have a verdict on one
count and not on the second?” Yes, you can have a verdict, as the
instructions told you. . . .
The second question where you said, “We are hung up. What do we
do from this point?”. . .
I think I’ll excuse you for the evening and ask you to come back and
continue your deliberations[,] . . . and then if you cannot arrive at a verdict
on all of the counts or on one of the counts--I take it your question was on
one count and not on two counts. I don’t know what, but you can come in
with a verdict on the one count of the indictment. I commend you to look
at Instruction 26 [the elements of the 924(c) charge] in connection with
your coming in with a verdict. Remember that in order to sustain his [sic]
burden of proof for a charge of using or carrying a firearm during and in
relation to a drug trafficking crime as charged in Count 2 in the indictment,
the government must prove the following two essential elements beyond a
reasonable doubt: First, that . . . the defendant committed or aided and
abetted in the commission of a drug trafficking crime charged in Count 1 of
the indictment. So, in order to-- in coming in with a verdict, you could not
come in with a verdict on Count 2 alone. Your verdict would have to be on
Count 1, and then if you think that the use of the weapon was in connection
with that, then you can find a verdict on Count 2.

(emphasis added). Before excusing the jury, the judge asked counsel if they had

any objections to his remarks, and both counsel replied that they did not.

The jury resumed deliberations at 9:00 a.m. the next morning. At 10:35, in

response to further communication from the foreman indicating that the jury still

was having difficulty reaching a verdict, the judge summoned the jury into the

courtroom. After some discussion, the judge asked the foreman: “[Do] you think

there is any reasonable belief that by further consideration of the evidence by the

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jury you can reach a verdict, or are you hopelessly deadlocked?” The foreman

responded, “Hopelessly deadlocked, Your Honor.” The court declared a mistrial.

There was no objection by the defendant at any time during the exchange,

including after the jury was discharged and the judge set the case for retrial.

“It has been established for 160 years . . . that a failure of the jury to agree

on a verdict was an instance of ‘manifest necessity’ which permitted a trial judge

to terminate the first trial and retry the defendant.” Richardson v. United States,

468 U.S. 317, 323-24 (1984). Indeed, such a situation has been “long considered

the classic basis for a proper mistrial,” removing any double jeopardy bar to

retrial. Arizona v. Washington, 434 U.S. at 509. Simpson argues, however, that

the trial judge did not take adequate steps to ascertain that the jury was in fact

deadlocked. He notes that the jury had been deliberating for only six to seven

hours, that the court failed explicitly to consider alternatives to a mistrial, and

that the court did not provide the parties with a hearing on the necessity of a

mistrial.

We accord the “highest degree of respect” to a trial judge’s finding of

manifest necessity based on a hung jury. Crotwell, 896 F.2d at 440 (quoting

Arizona v. Washington, 434 U.S. at 510-11). A trial judge is not required to

make an explicit finding of manifest necessity so long as adequate justification is

apparent from the record. See Arizona v. Washington, 434 U.S. at 516-17. We

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find such justification apparent here. Simpson’s trial lasted only a day and a half.

When the mistrial was declared, the jury had been deliberating nearly that long,

and had repeatedly indicated to the court that it was unable to reach a verdict.

The trial judge asked the foreman whether further deliberations would be helpful,

and the foreman replied that the jury was “hopelessly deadlocked.” Under these

circumstances, the trial judge did not abuse his discretion in declaring a mistrial.

Simpson further argues that even if the jury was deadlocked, the impasse

was caused by the trial judge’s error, and mistrial therefore was improper.

Simpson alleges that the judge’s statement to the jury that it could not convict on

the firearm count unless it convicted on the drug count was inconsistent with our

language in United States v. Hill, 971 F.2d 1461, 1464 (10th Cir. 1992), where we

said that “[w]hile proof of the underlying crime is necessary to convict under §

924(c), a defendant need not be convicted of the underlying crime in order to be

convicted of § 924(c).”

We question Simpson’s premise that the jury deadlock was caused by trial

judge error. 1 Even if we were to accept that premise, however, we would find no

1
Although Simpson is correct that a § 924(c) conviction may be sustained
even in the absence of a conviction on the underlying drug count, it is clear that
“proof of the underlying crime is an essential element of a substantive § 924(c)
violation.” Hill, 971 F.2d at 1467 (emphasis added). The only “error” that could
have been committed by the trial judge, therefore, was in representing to the jury
that it could not bring an irrational and inconsistent verdict, when in fact such
(continued...)

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merit to Simpson’s argument. “[T]he double jeopardy clause does not require

‘manifest necessity’ for the events that triggered the mistrial; manifest necessity

for the mistrial itself will ordinarily permit a second trial.” United States v.

Buljubasic, 808 F.2d 1260, 1265 (7th Cir.) (rejecting defendant’s claim that

because manifest necessity for mistrial flowed from erroneous denial of severance

motions, retrial was barred), cert. denied, 484 U.S. 815 (1987). “A rule barring

retrial any time a court commits . . . error would be unacceptable in light of

society’s interest in giving the prosecutor one full and fair opportunity to present

his evidence to an impartial jury.” United States v. Goland, 897 F.2d 405, 410

(9th Cir. 1990) (quotation omitted). Simpson has alleged no bad faith conduct by

the trial judge, but rather only that an innocent error, to which no objection was

lodged, contributed to the evident manifest necessity for mistrial. That is an

insufficient basis to challenge the exercise of the trial judge’s discretion in

finding the jury deadlocked. Therefore, Simpson’s double jeopardy claim must

fail. See Richardson, 468 U.S. at 324-26 (“[W]e have constantly adhered to the

1
(...continued)
verdicts have been upheld. See id. at 1468-69; United States v. Powell, 469 U.S.
57, 62-69 (1984) (upholding jury verdict acquitting defendant of drug conspiracy
and possession with intent to distribute but convicting defendant of using the
telephone to facilitate these same offenses). We decline to consider whether this
instruction was error, although we note that Simpson’s failure to object to the
judge’s remarks would, in any event, limit our review to plain error only. See
United States v. Meuli, 8 F.3d 1481, 1487 (10th Cir. 1993), cert. denied, 114 S.
Ct. 1403 (1994).

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rule that a retrial following a ‘hung jury’ does not violate the Double Jeopardy

Clause”; a jury’s failure to reach a verdict does not terminate jeopardy).

II.

Simpson next challenges the sufficiency of the evidence underlying both his

convictions. “In reviewing the sufficiency of evidence to sustain a jury’s guilty

verdict, we examine the evidence in the light most favorable to the government in

order to determine whether the evidence . . . together with all reasonable

inferences to be drawn therefrom, is substantial enough to establish guilt beyond a

reasonable doubt.” United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994)

(quotation omitted), cert. denied, 115 S. Ct. 1439 (1995). “We reverse only if no

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir.

1995), petition for cert. filed, No. 95-9284 (U.S. June 10, 1996).

A.

We turn first to the firearm count. Simpson was charged with “using and

carrying” a firearm in violation of 18 U.S.C. § 924(c). 2 At trial, evidence was

2
Simpson was indicted for “using and carrying” a firearm. However, 18
U.S.C. § 924(c)(1) defines the crime in the disjunctive, as did the instruction to
the jury. “[A] crime denounced in the statute disjunctively may be alleged in an
indictment in the conjunctive, and thereafter proven in the disjunctive.” United
States v. Parrish, 925 F.2d 1293, 1297 (10th Cir. 1991) (internal quotation marks
omitted).

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presented that Simpson carried a handgun from the residence where the crack

cocaine was found, and placed something under the passenger side of a vehicle.

When Simpson was arrested in the second vehicle, a 9 mm handgun was under the

front seat of that car, and the jury could have found that this gun was in

Simpson’s presence during the earlier drug transactions in his home. In addition,

some of the ammunition found in the bedroom containing the crack cocaine was 9

mm ammunition. The jury was instructed as follows:

The phrase “uses or carries a firearm,” for purposes of this
case, means having a firearm available to assist or aid in the
commission of the crime alleged in Count 1 of the indictment.
In determining whether the defendant used or carried a
firearm, you may consider all of the factors received in evidence. . .
including the nature of the underlying crime of drug trafficking
alleged, the proximity of the defendant to the firearm in question, the
usefulness of the firearm to the crime alleged, and the circumstances
surrounding the presence of the firearm.
A defendant “uses” a firearm when it (1) is readily accessible,
(2) is an integral part of the criminal undertaking, and (3) increases
the likelihood of success for that undertaking. The government is not
required to show that a defendant actually displayed or fired the
weapon to prove “use.” However, you must be convinced beyond a
reasonable doubt that the firearm played a role in or facilitated the
commission of the drug offense charged. (R.O.A., Vol. I, doc. 61,
instruct. # 27)

The parties do not dispute that this instruction was correct at the time of

Simpson’s trial. While this appeal was pending, however, the Supreme Court

narrowed the broad definition of “use” that this circuit had previously applied and

held that “[t]o sustain a conviction under the ‘use’ prong of § 924(c)(1), the

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Government must show that the defendant actively employed the firearm during

and in relation to the predicate crime.” Bailey v. United States, 116 S. Ct. 501,

509 (1995). Although Simpson has styled his challenge to the § 924(c)

conviction as an objection to the sufficiency of the evidence, we believe the

Supreme Court’s decision in Bailey requires us to consider whether his conviction

can be sustained despite the erroneous instruction of the district court. See

United States v. Ramirez-Ferrer, 82 F.3d 1149, 1151 (1st Cir. 1996). 3 If we

cannot be certain that the jury necessarily based its verdict on conduct that, after

Bailey, is still considered criminal, we cannot affirm. See United States v.

Moore, 76 F.3d 111, 113 (6th Cir. 1996); see also United States v. Smith, 82 F.3d

1564, 1567 (10th Cir. 1996) (§ 924(c) conviction cannot stand where “we have no

assurance that the jury did not convict on the legally insufficient evidence and

erroneous instruction regarding use of the firearm.”).

We are guided in part by Bailey itself. There, the defendants, who were

charged with both “using” and “carrying” a firearm, challenged the sufficiency of

the evidence supporting their convictions. Id. at 504. After articulating a new

standard for “use,” the Supreme Court evaluated the evidence against the

defendants under the appropriate definition. Holding that the evidence was

3
Simpson filed a supplemental authority invoking Bailey, which was
decided after his reply brief was filed, as support for his sufficiency claim.

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insufficient to support a conviction for “use,” the Court remanded for the court of

appeals to consider whether the convictions could be supported under the

“carrying” prong. Applying Bailey, we have held that outright reversal is

required only where there is no evidence that could support a defendant’s

conviction under the proper legal standard. If there is some evidence based on

which a jury could have convicted, remand for a new trial is the appropriate

remedy. Wacker, 72 F.3d at 1464-65.

Our inquiry is thus twofold: whether the jury was instructed under the

proper legal standard and, if not, whether there is some evidence that would have

supported a conviction under a proper instruction. We turn first to the proper

standard. As Simpson was charged with both using and carrying a firearm, we

must consider the jury instruction under both prongs. If the instruction as to one

prong was legally erroneous, but the jury was correctly instructed on the other

prong, we may affirm Simpson’s conviction if we can “determine with absolute

certainty that the jury based its verdict on the ground on which it was correctly

instructed.” United States v. Miller, 84 F.3d 1244, 1257 (10th Cir. 1996). Here,

however, the jury was not correctly instructed as to either “use” or “carry.”

To support a finding that a defendant used a firearm for purposes of §

924(c), the government must prove that the defendant “actively employed” the

gun. Bailey, 116 U.S. at 509. To support a finding that a defendant carried a

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firearm, both before and after Bailey, the government must prove “that the

defendant transported a firearm in a vehicle and that he had actual or constructive

possession of the firearm while doing so,” Miller, 84 F.3d at 1259, and must also

prove that the defendant possessed and transported the firearm during and in

relation to a drug trafficking offense. United States v. Richardson, 86 F.3d 1537,

1548 (10th Cir. 1996). The court here erroneously instructed the jury as to the

legal standard for “use.” It also defined the phrase “uses or carries” as “having a

firearm available to assist or aid in the commission of the crime,” which is

incorrect after Bailey. It did not separately define “carry,” and under the

instruction as given the jury could have erroneously decided that the terms “use”

and “carry” were redundant. Because the jury was not instructed that it must find

possession and transportation of a firearm during and in relation to a drug

trafficking crime, we cannot affirm Simpson’s § 924(c) conviction.

We turn next to whether there was evidence that could have supported

Simpson’s conviction under a proper jury instruction. We conclude there is no

evidence that Simpson actively employed the firearm. Although the jury could

have concluded that Simpson had the gun in his possession while conducting drug

transactions, the government offered no evidence that Simpson brandished,

displayed, bartered, struck with, fired, disclosed, mentioned, or in any other way

actively employed the firearm. See Bailey, 116 S. Ct. at 508. Therefore, the

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evidence was legally insufficient to support a finding that Simpson used a

firearm. However, we believe there was evidence from which a jury could have

concluded that Simpson carried the firearm that was found under the front seat of

the car in which he was riding, and that such carrying was during and in relation

to a drug trafficking offense. He clearly transported the firearm, and it was

accessible to him in such a way that he had dominion and control over it. There

is also evidence based upon which a jury could conclude that Simpson carried the

weapon during and in relation to drug trafficking. Officers observed apparent

drug trafficking involving Simpson immediately prior to the moment Simpson was

seen exiting the house with what the jury could have concluded was the firearm

charged. Because there was some evidence of carrying, as that term is properly

defined, we remand for a new trial on the issue of whether Simpson carried the

firearm for purposes of § 924(c). See United States v. Spring, 80 F.3d 1450, 1466

(10th Cir. 1996), petition for cert. filed, No. 95-9420 (U.S. June 25, 1996); United

States v. Smith, 82 F.3d 1564, 1567 (10th Cir. 1996).

B.

To support a conviction for possession with intent to distribute crack

cocaine, the government must prove that Simpson knowingly possessed the

substance with intent to distribute. Possession need not be actual, but may be

constructive. U.S. v. Culpepper, 834 F.2d 879, 881-82 (10th Cir. 1987). “In

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order for an individual constructively to possess property, he must knowingly hold

the power and ability to exercise dominion and control over it . . . . With regard

to narcotics, we have defined constructive possession as an appreciable ability to

guide the destiny of a drug.” United States v. Verners, 53 F.3d 291, 294 (10th Cir.

1995) (quotation omitted).

Simpson claims the evidence was insufficient to support the conclusion that

he had constructive possession of the drugs found in the bedroom at 2350 N. Erie.

We disagree. Among the evidence linking Simpson to the bedroom were

photographs of Simpson, and documents addressed to Simpson at 2350 North

Erie, found in the room. The detective who searched the room testified that a

baseball cap in the room matched a cap worn by Simpson in one of the pictures.

Additionally, Simpson’s grandmother told the police that the room in which the

crack cocaine was found was Simpson’s bedroom. Simpson himself, upon his

arrest, gave his address to police as 2350 North Erie, and signed his bond papers

with that address. A rational jury reasonably could infer that Simpson currently

occupied that bedroom. Even if the jury concluded that Simpson was not

currently living at the residence, it reasonably could conclude that Simpson

continued to exercise dominion and control over the bedroom, and therefore was

in constructive possession of the cocaine found therein. See, e.g., Verners, 53

F.3d at 293-94 (evidence of constructive possession sufficient where drugs found

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in defendant’s mother’s house, in defendant’s old bedroom and in kitchen;

defendant had used the house as his residence at one time, still visited the house

regularly, still gave the residence as his address, still stored possessions there, but

apparently did not sleep in the bedroom).

IV.

Finally, Simpson challenges the district court’s use of a prior conviction to

enhance his sentence. The district court’s factual findings at sentencing are

reviewed for clear error, while its interpretation of the Sentencing Guidelines is a

question of law reviewed de novo. United States v. Bridges, 50 F.3d 789, 790-91

(10th Cir. 1994).

The probation officer who prepared Simpson’s presentence report listed a

conviction for battery dated April 25, 1994 in the Municipal Court of Wichita,

Kansas. The probation officer assessed one point to Simpson’s criminal history

for this conviction, see U.S.S.G. § 4A1.1(c), thus raising Simpson’s criminal

history category from I to II, and the applicable guideline range from 151-188

months to 168-210 months. Simpson objected that the battery conviction was the

result of a guilty plea that his attorney had entered on his behalf without his

permission. He asserted that he had never been sentenced and the case was not

final because he intended to appeal the Municipal Court conviction. This appeal,

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he asserted, would result in a “trial de novo,” and therefore there was as yet no

conviction.

The probation officer responded by obtaining a certified docket sheet from

the Municipal Court in Wichita. The docket sheet indicates that the defendant

pled nolo contendere to battery and was found guilty by the court on April 25,

1994. The district court concluded that neither Simpson’s stated intention to

appeal the conviction nor the fact that Simpson had not yet been sentenced

precluded the conviction from being counted. See U.S.S.G. §§ 4A1.2(a)(4)

(“Where a defendant has been convicted of an offense, but not yet sentenced, such

conviction shall be counted . . .”); 4A1.2(l) (“Prior sentences under appeal are

counted except as expressly provided below.”). The court further concluded it

could not entertain a collateral attack on the validity of the conviction, and

overruled Simpson’s objections without conducting an evidentiary hearing.

On appeal, Simpson asserts that he is not challenging the constitutionality

of the conviction or whether the conviction was countable under the Guidelines,

but rather whether the district court “had sufficient evidence to conclude that the

conviction was genuine.” Br. of Appellant at 28. The government must establish

the fact of a prior conviction by a preponderance of the evidence. United States

v. Ortiz, 63 F.3d 952, 955 (10th Cir. 1995). Simpson argues that a docket sheet

alone is insufficient to meet this burden

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 We believe that a certified docket sheet is adequate, absent some

contradictory evidence by the defendant, to establish the existence of a prior

conviction for this sentencing purpose. See, e.g., United States v. Dickens, 879

F.2d 410 (8th Cir. 1989) (affirming, over defendant’s challenge to validity,

consideration of prior conviction of which only record was state court docket

sheet). In any event, Simpson conceded the fact of his conviction below. In his

written objections to the presentence report, Simpson stated that his attorney’s

staff had informed him that he did not need to appear at the trial on the domestic

violence charge, and when he did not do so, the attorney “without the defendant’s

permission, entered his plea.” At the sentencing hearing, Simpson repeated that

the attorney, “without the defendant’s permission, either went to trial or entered

some kind of plea against the defendant.” Having described to the district court

how the conviction was obtained, Simpson may not now challenge its existence.

Cf. United States v. Lopez-Gutierrez, 83 F.3d 1235, 1246-47 (10th Cir. 1996)

(defense counsel’s concession as to validity of prior offense rendered harmless

district court’s failure to inform defendant of his opportunity to challenge that

conviction in the context of 21 U.S.C. § 851(b)).

Simpson also argues that the conviction is not “genuine” because his

counsel entered a plea without his consent. We have held that “with the exception

of a collateral attack based on the complete denial of counsel, a district court

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sentencing a defendant under the career offender provisions of the Guidelines

cannot consider a collateral attack on a prior conviction.” United States v. Garcia,

42 F.3d 573, 581 (10th Cir. 1994); see also U.S.S.G. § 4A1.2, comment.,

application note 6 (“With respect to the current sentencing proceeding, this

guideline and commentary do not confer upon the defendant any right to attack

collaterally a prior conviction or sentence beyond any such rights otherwise

recognized in law. . . .”). We see no distinction, for these purposes, between the

career offender provisions contained in Guideline 4B1.1 which were applied in

Garcia, and the criminal history calculations provided by Guideline 4A1.1 used to

calculate Simpson’s sentence. The district court correctly concluded that it was

precluded from considering Simpson’s collateral attack on the prior conviction,

and we affirm the determination of sentence.

V.

Simpson’s conviction for violating 18 U.S.C. § 924(c)(1) is REVERSED

and REMANDED for further proceedings. All other aspects of the district court’s

judgment are AFFIRMED.

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