Currier v. United States

United States Court of Appeals
For the First Circuit

No. 01-2528
GEORGE CURRIER, JR.,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before

Torruella, Circuit Judge,
Greenberg,* Senior Circuit Judge,
and Howard, Circuit Judge.

Dina Michael Chaitowitz, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney was on brief, for
appellant.
Kent A. Russell for appellee.

February 13, 2003

*Of the Third Circuit, sitting by designation.
 HOWARD, Circuit Judge. The government appeals an order of

the district court vacating the 1997 conviction of appellee George

Currier, Jr., for use of a firearm during and in relation to a drug

trafficking offense. See 18 U.S.C. § 924(c)(1). The government

contends that the order, issued under 28 U.S.C. § 2255, is based on an

erroneous finding that Currier was victimized by ineffective assistance

of counsel during the bench trial leading to the conviction. We agree

and reinstate Currier's conviction.

I.

We cull the facts relevant to our ruling from the panel

opinion affirming the conviction on direct review, see United States v.

Currier, 151 F.3d 39 (1st Cir. 1998), and from the record before the

district court during the collateral proceedings.

At about 5:00 a.m. on September 5, 1996, a team of federal

and state law enforcement agents gathered outside a basement apartment

where Currier was then residing in order to execute a search warrant.

The officers knocked on Currier's door and announced their presence,

received no reply, and forcibly entered the apartment while continuing

to shout that they were police officers. Almost immediately thereafter,

a member of the search team -- Sergeant Martin Conley of the

Massachusetts State Police -- attempted to kick in a closed door within

the apartment. According to Conley, his initial kick was met with

resistance and was unsuccessful, but a second kick opened the door to

a lighted bedroom. Inside, about four feet from the threshold, a naked

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Currier had assumed a shooter's stance and was pointing a revolver

directly at him. Conley, who was wearing a bullet-proof vest which

prominently displayed his state police badge, ordered Currier to drop

his weapon. Currier remained in a shooter's stance and failed to

comply. Conley repeated his order. This time, Currier obeyed and was

arrested. A subsequent search of the bedroom yielded approximately ten

ounces of methamphetamine, $4,225 in cash, a triple beam scale, and the

gun, which proved to be a Smith & Wesson .357 magnum loaded with hollow

point ammunition.

Currier was indicted for a number of drug trafficking

offenses and for using the .357 magnum during and in relation to those

offenses. Currier pleaded guilty to drug trafficking but chose to

contest the gun charge at a jury-waived trial before Chief Judge Young.

During this trial, the government called Sergeant Conley (who testified

to the events just described) and two other witnesses, one of whom

corroborated that Conley twice told Currier to drop the gun. Currier's

trial counsel called no witnesses. Instead, he chose to make his case

by cross-examining the government's witnesses. In the course of these

cross-examinations, Currier's trial counsel was able to establish that

Currier and his girlfriend, Amy St. Amand (who was with Currier in the

apartment), were probably asleep when the search began; that the events

in question took place in a matter of seconds; and that there was an air

conditioner in the bedroom window (although the witness who recalled the

air conditioner, Sergeant Conley, could not recall whether the air

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conditioner was turned on or noisy). Counsel also introduced into

evidence a police report indicating that there had been a break-in at

Currier's apartment building nearly three months prior to the search.

During closing arguments, the government's counsel urged the

court to adopt the reasoning in United States v. Tolliver, 116 F.3d 120

(5th Cir. 1997), that a conviction under 18 U.S.C. § 924(c)(1) was

warranted so long as the court believed that Currier's use of his

firearm -- his grabbing the gun and pointing it at Sergeant Conley --

was prompted by a desire to escape or delay arrest. See id. at 124-26

(holding that a defendant's act of reaching for a gun as federal law

enforcement agents stormed into his bedroom could constitute a §

924(c)(1) "use . . . in relation to" a drug distribution conspiracy if

the jury found that the act was prompted by a desire to prevent arrest

and/or to forestall the seizure of instrumentalities of the conspiracy).

Currier's trial counsel countered that Tolliver goes too far, that

instead the government needed to more directly tie Currier's use of the

gun to his trafficking in order for the use to support a § 924(c)(1)

conviction, and that record evidence of such a tie was lacking. In

making this counter-argument, Currier's trial counsel cited United

States v. Alvarez, 814 F. Supp. 908 (D. Idaho 1993), as setting forth

a more appropriate approach to the "use . . . in relation to" issue than

Tolliver. See 814 F. Supp. at 911 (emphasizing the need for evidence

of a connection between the firearm and the underlying drug trafficking

offense). Counsel also argued that the trial evidence more reasonably

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indicated that Currier had grabbed the gun "to defend himself or his

lady friend" from a frightening home invasion than that Currier had

grabbed the gun to facilitate his drug trafficking.

At the conclusion of closing arguments, Chief Judge Young

sided with the government. Although he had a reasonable doubt that one

of Currier's purposes in grabbing his weapon and pointing it at Sergeant

Conley "was to get the drugs or the drug paraphernalia or the proceeds

out of that apartment," he concluded that the government did not need

to make such a showing in order to obtain a conviction. Pointing out

that the case was "virtually on all fours with [Tolliver]," the judge

found that Currier had used his firearm during and in relation to his

drug trafficking simply by "snatching up that weapon to get [him]self

out of there." Accordingly, he entered a judgment of conviction under

18 U.S.C. § 924(c)(1). Thereafter, the judge sentenced Currier to

sixteen years' imprisonment: eleven years for his drug trafficking

convictions and the mandatory five consecutive years for his use of a

firearm during and in relation to the conduct underlying those

convictions. See 18 U.S.C. § 924(c)(1).

On direct appeal, Currier contended that, despite Chief Judge

Young's decision to convict, the judge's remarks at the conclusion of

the bench trial evinced agreement with the proposition that Currier had

used the gun in self-defense and not to facilitate his drug trafficking.

See 151 F.3d at 41. The panel that heard the direct appeal rejected the

premise of this argument and affirmed Currier's conviction. See id. at

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41-42. In doing so, the panel endorsed the soundness of the judge's

reasoning and, by extension, the reasoning in Tolliver. See id. at 42

("The district court concluded that Currier grabbed the gun with the

intention of escaping or forestalling his arrest, and, however short-

lived that notion, his conviction under 18 U.S.C. § 924(c)(1) was

proper."). The Supreme Court thereafter denied Currier's petition for

a writ of certiorari, see 525 U.S. 1056 (1998), which sought to have the

Court decide whether "a defendant [can] be found guilty of a violation

of 18 U.S.C. § 924(c)(1) if at the time a weapon is brandished there is

absent any thought or consideration of the underlying offense."

On December 13, 1999, Currier moved to vacate and correct his

sentence under 28 U.S.C. § 2255. In the motion, which was referred to

Judge Harrington instead of Chief Judge Young, Currier asserted that he

had been victimized by ineffective assistance of counsel during the

bench trial. Currier presented five grounds in support of his

ineffective assistance claim. Three of the five grounds were based on

the underlying legal premise that self-defense can be an affirmative

justification defense to a 18 U.S.C. § 924(c)(1) charge. The three

arguments arising from this premise were that (1) trial counsel

unreasonably failed to prepare and present an affirmative case of self-

defense, (2) trial counsel unreasonably failed to advise the trial judge

that self-defense was a viable affirmative defense and/or that it was

being relied upon, and (3) trial counsel falsely represented to the

appeals court that he had presented an affirmative claim of self-defense

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on which the trial judge made favorable findings. The other two grounds

for asserting ineffective assistance, while closely linked to the other

three, were conceptually separate: (4) trial counsel unreasonably failed

to seek or obtain Currier's informed consent to waiving his right to

testify (and thereby to present his affirmative self-defense claim) at

the trial, and (5) trial counsel unreasonably failed to distinguish or

otherwise deal with Tolliver.

The district court ordered the government to respond to

Currier's motion and held an evidentiary hearing at which Currier,

Currier's new girlfriend, and Currier's trial counsel testified.

Subsequently, the court issued a memorandum and order concluding that

Currier's trial counsel's failure to investigate, prepare, or present

an affirmative claim of self-defense was outside the wide range of

professionally competent assistance and prejudicial. See Currier v.

United States, 160 F. Supp. 2d 159, 161-66 (D. Mass. 2001) (applying the

two-part test for evaluating ineffective assistance of counsel claims

established in Strickland v. Washington, 466 U.S. 668, 688-94 (1984)).

Central to this ruling were subsidiary determinations that Currier's

trial counsel was prejudicially ineffective in failing to distinguish

Tolliver, to prepare Currier and St. Amand to testify, and to put them

on the witness stand. See id. As a remedy, the court granted Currier's

motion and vacated his firearms conviction. See id. at 166. The court

also reduced Currier's sentence from sixteen years to eleven. See id.

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 II.

The government presents two primary arguments on appeal.

First, it contends that the district court erred, both legally and

factually, when it found that Currier's trial counsel's performance fell

outside the range of professionally competent assistance and prejudiced

Currier within the meaning of Strickland. Within this umbrella

argument, the government advances a number of supporting arguments, one

of which was not explicitly made below and surfaces for the first time

in the government's appellate brief: that, at least under the facts of

this case, self-defense was not available as an affirmative

justification defense to the § 924(c)(1) charge in the same way it can

be to, say, a homicide or assault charge. Ultimately, we agree with the

government that Currier has not succeeded in establishing Strickland

prejudice.

Second, the government asserts that, even if the court

correctly concluded that Currier's trial counsel was ineffective, it

erred in reducing Currier's sentence rather than scheduling the case for

further proceedings. In view of our holding on the Strickland prejudice

issue, we do not reach this second argument.

This case has been made somewhat more complicated by

Currier's apparent success below (abetted by the government's initial

silence on the issue)1 in framing the debate in terms of whether

1
Currier contends that this initial silence constitutes a
forfeiture and precludes our review of the matter. We disagree. The
government argued below that Currier's trial counsel's handling of the

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Currier's trial counsel committed prejudicial constitutional error by

failing to present his self-defense theory as an affirmative

justification defense -- with all that establishing such a defense might

entail. Cf. United States v. Gant, 691 F.2d 1159, 1162-63 (5th Cir.

1982) (holding that an affirmative justification defense of self-defense

in the context of a felon-in-possession charge requires the defendant

to show that (1) he faced an imminent threat of death or serious bodily

injury, (2) he did not recklessly or negligently place himself in a

situation where he would be forced to choose the criminal conduct, (3)

he had no reasonable legal alternative to violating the law, and (4)

there was a direct causal relationship between the conduct in question

and avoidance of the imminent threat). We do not have occasion in this

case to say that a charge under 18 U.S.C. § 924(c)(1) is never

susceptible to an affirmative justification defense such as self-

defense. Cf. United States v. Willis, 38 F.3d 170, 173-74 (5th Cir.

1994) (acknowledging the possibility that duress may be raised as an

affirmative defense to a charge under § 924(c)(1)). Nevertheless, this

is not a case where the assertion of such a defense would have been

appropriate.

A self-defense claim of the sort animating Currier's

ineffective assistance argument is a necessity defense which, "like

other justification defenses, allows a defendant to escape

self-defense issue was not prejudicially ineffective. Under our case
law, the government may now advance an additional reason why this is so.
See United States v. DiPina, 178 F.3d 68, 72 n.7 (1st Cir. 1999).

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responsibility despite proof that his actions encompassed all of the

elements of a criminal offense." United States v. Maxwell, 254 F.3d 21,

26 (1st Cir. 2001). Thus, to endorse Currier's position, we would have

to find that Currier's trial counsel was prejudicially ineffective in

failing to argue that, if Currier had indeed used his gun "during and

in relation to" his drug trafficking, he did so justifiably. While, at

least in theory, there may be situations in which a person justifiably

(as that term is understood in the context of justification defenses)

uses a gun to facilitate a drug trafficking offense, we are confident

that, if they exist at all, such situations are few and far between.

So too are we confident that Chief Judge Young could not supportably

have found, on the facts of this case, that Currier used his gun to

facilitate his drug trafficking yet did so justifiably. Currier has

thus suffered no Strickland prejudice as a result of trial counsel's not

advancing an affirmative justification defense but instead presenting

the more modest "self-defense" argument that he actually made.2

2
We reject Currier's assertions that trial counsel made no self-
defense argument and/or failed to generate evidence tending to support
the argument. As set forth above, Currier's trial counsel argued that
the government had failed to prove a statutory violation in the first
place because, on one reasonable view of the evidence, Currier's use of
the gun was to defend himself (and St. Amand) and accordingly could not
have facilitated his drug trafficking offenses. See pages 4-5, above.
This is the "self-defense" argument to which the panel made reference
in Currier's direct appeal. See 151 F.3d at 41 ("If, indeed, Currier
was using his gun only for self-defense, and had formed no intent to
evade or escape arrest, or to facilitate his drug trafficking in any
other way, then his conviction under § 924(c)(1) might well be
improper."). Counsel also was able to elicit, through cross-examination
of government witnesses, that the raid took place in a matter of seconds
and at a time and in circumstances that were likely to leave Currier

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 We evaluate the remaining elements of Currier's ineffective

assistance claim through the prism of Strickland's prejudice requirement

as well. We thus ask whether Chief Judge Young's linchpin finding that

Currier "used" his firearm (within the meaning of Tolliver) because at

some point prior to dropping the gun he knew that those invading his

home were law enforcement agents, might have been different had counsel

presented at trial the evidence generated and arguments made during the

28 U.S.C. § 2255 proceedings.3 See Strickland, 466 U.S. at 694

(explaining that trial counsel's errors are not prejudicial unless a

different outcome is sufficiently probable that the habeas court lacks

confidence in the trial's outcome). We see no reasonable probability

that counsel's assumed missteps had any effect on this crucial finding.

The alleged errors by trial counsel include failing to

prepare sufficiently a self-defense argument, to evaluate whether

Currier and St. Amand should take the stand, to discuss with Currier his

entitlement to take the stand, and to distinguish or otherwise deal with

Tolliver. The last of these elements is a non-starter because the prior

panel approved the reasoning of Tolliver and because the case is

materially indistinguishable if Currier knew as he brandished his weapon

that the persons entering the apartment were police officers. See 116

uncertain as to who was invading his home. See pages 3-4, above.
3
"The district court concluded that Currier grabbed the gun
with the intention of escaping or forestalling arrest, and, however
short-lived that notion, his conviction under 18 U.S.C. § 924(c)(1)
was proper." Currier, 151 F.3d at 42.

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F.3d at 124-26 (holding that a drug trafficking conspirator's use of a

gun to prevent arrest would be "in relation to" the conspiracy). We

have already determined that trial counsel's failure to present a self

-defense argument did not prejudice Currier. We now turn to the other

two elements of Currier's claim and ask whether either of these alleged

lapses caused counsel to fail to generate evidence that might have

affected the judge's finding about Currier's knowledge.

Currier suggests that the outcome of his trial might have

been different had he testified and told Chief Judge Young about reasons

for his gun possession and use that were unrelated to his drug

trafficking: that St. Amand was a stripper and thus a prime stalking

target, and that Currier worked as a security guard for an escort

service and for a friend in the restaurant business. Currier also

complains that his failure to testify (and to call St. Amand as a

corroborating witness) deprived the judge of important information about

the state of affairs in the apartment bedroom during the raid: namely,

that the bedroom's darkness, the brightness of the officers'

flashlights, and the noise made by the rickety old bedroom air

conditioner all kept him from realizing that those coming through the

door were law enforcement officials until the point at which he dropped

the gun.

If credited (a big if), the testimony about Currier's other

reasons for owning a gun might have been helpful on whether, in general,

Currier used his gun in connection with his drug trafficking. But the

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testimony has very little probative value on whether, as a factual

matter, Currier came to understand prior to dropping the gun that the

persons breaking into the apartment were law enforcement officials --

the basis on which Chief Judge Young convicted Currier and the premise

upon which that conviction was affirmed. Moreover, Currier's and St.

Amand's self-serving testimony about the state of affairs in the bedroom

during the raid, while perhaps not entirely consistent with4 and

cumulative of5 the evidence trial counsel was able to elicit on cross-

examination, would have added little to the body of evidence that was

before the judge during the bench trial. In the end, having read the

record with care, we find it highly improbable that the judge's finding

about the state of Currier's knowledge during the raid would have been

affected by the additional evidence Currier developed and the arguments

Currier made on collateral review.

4
Most prominently, as set forth above, Sergeant Conley testified
that the overhead lights were on in the bedroom when he kicked in the
door; Currier did not directly contradict this but testified (at the
hearing on his 28 U.S.C. § 2255 motion) that, after he opened the
bedroom door (contra to Conley's testimony that Conley kicked the door
in), "all [he] could see was lights, real bright lights flashing in
[his] eyes because it was pitch black out there, too, and [he] couldn't
see anything." Currier also submitted a sworn statement that, when the
raid began, he "was in a dark bedroom with all the lights out," and
that, after he had pulled open the door, "[he] could not see anybody
because it was still dark out and the flashlights were being shined in
[his] eyes."
5
For example, Currier testified that he didn't hear the officers'
shouts because the bedroom had a "rickety old air conditioner" that was
"kind of loud"; Sergeant Conley confirmed that there was an air
conditioner in the window but, as we have stated, could not recall
whether it was turned on or, for that matter, noisy.

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 Conclusion

For the reasons set forth above, we reverse the order

awarding Currier collateral relief and remand with instructions that

Currier's conviction and sentence under 18 U.S.C. § 924(c)(1) be

reinstated.

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